THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE  LAW 


OF 


WORKMEN'S  COMPENSATION 


[TAKEN  FROM  L.R.A.  1916  A] 


BY 

WALTER  M.  GLASS 

OF  THE  PUBLISHERS  EDITORIAL  STAFF 


ROCHESTER,  NEW  YORK, 

THE  LAWYERS  CO-OPERATIVE  PUBLISHING  CO. 
1916 


COPYRIGHTED  1916 

BY 

THE  LAWYERS  CO-OPERATIVE  PUBLISHING  COMPANY 


1 

PREFACE. 
3 

The  rapid  spread  of  the  workmen's  compensation  jaws  in  this  country 
^  has  seemed  revolutionary  to  many  people.  Yet  they  have  been  in  force  in 
^  Europe  for  over  a  quarter  of  a  century,  and  in  England  since  1897.  The 
first  American  statute  of  this  kind  was  in  1910,  and  that  was  held  invalid. 
The  next  one  was  in  1911.  Yet  such  laws  are  now  in  force  in  half  the 
states  of  this  country  and  rapidly  spreading,  while  about  350  judicial 
decisions  have  already  been  rendered  upon  them.  Indeed,  nothing  so  revo- 
lutionary in  its  effect  upon  the  rights  and  liabilities  of  so  vast  a  number 
of  American  citizens  has  ever  been  known  in  American  legislation  as  that 
which  has  been  caused  by  the  adoption  of  the  modern  workmen's  compen- 
sation acts.  It  has  become  imperative  to  have  an  adequate  treatment  of  the 
existing  law  on  these  matters,  and  this  volume  is  offered  to  meet  that  need. 

Many  distinctive  features  of  the  American  statutes  are  taken  literally 
from  the  English  act,  or  closely  modeled  thereon,  and  therefore  our  own. 
courts  have  had  to  go  to  the  English  decisions  for  precedents  in  many  of  the; 
most  important  American  cases.  There  are  about  2,000  of  these  Englishi 
decisions,  arid  these,  together  with  all  American  cases,  have  been  carefully 
analyzed,  and  all  their  value  fully  presented  in  this  work. 

There  is  also  a  Federal  statute  on  this  subject,  but  it  is  limited  to  em- 
ployees of  the  Federal  government,  and  no  cases  under  it  have  yet  been 
passed  upon  by  the  courts. 

This  treatise  was  prepared  primarily  for  use  as  one  of  the  annotations^ 
in  the  Lawyers  Reports  Annotated,  and  appears  in  the  current  volume,, 
L.R.A.1916A.  This  explains  the  frequent  use  of  the  word  "annotation;'' 
also  several  very  slight  changes  in  form  and  arrangement  deemed  more 
appropriate  to  the  style  of  a  text-book.  One  of  these  is  in  the  form  of 
printing  the  table  of  contents ;  another  is  in  the  running  titles  or  top  lines 
on  the  pages.  The  third  of  these  is  in  transferring  the  first  23  pages  of 
the  L.R.A.  volume  preceding  the  text  of  the  present  treatise,  and  on  which 
were  printed  the  reports  of  some  leading  cases,  to  the  end  of  this  volume, 
with  new  page  numbers,  but  retaining  the  former  page  numbers  1-23 
in  brackets.  An  index  and  a  table  of  cases  reported  and  cited  in  this 
volume  have  also  been  added.  In  other  respects  this  entire  treatise  on 
workmen's  compensation  laws,  followed  by  over  forty  of  the  leading  Ameri-- 

3 


729913 


4  PREFACE. 

can  decisions  on  this  subject  reported  in  full,  with  some  special  text  anno- 
tation, is  exactly  reproduced  from  the  L.R.A.  volume  without  any  change 
in  type  or  otherwise.  To  those  not  familiar  with  that  series  of  reports, 
it  may  be  proper  to  say  that  this  work  is  an  example  of  what  L.R.A.  is 
doing  for  all  branches  of  the  law.  But  L.R.A.  subscribers  should  not 
purchase  this  volume,  because  they  already  have  the  entire  work  in  their 
reports. 

We  may  also  be  permitted  to  call  attention  to  the  compactness  of  this 
volume,  and  to  the  fact  that,  if  printed  in  the  style  of  ordinary  text-books, 
it  would  fill  more  than  a  thousand  pages. 

Rochester,  K  Y.,  1916. 


CONTENTS. 


Part  A.  Introductory,  27. 

I.  Introduction  and  scope  27 

Part  B.     English  and  Colonial  decisions,  28. 

II.  In  general 28 

III.  Application  of  the  statute  generally  (§  1)    29 

a.  Text  of  §  1 29 

b.  "Injury  by  accident"   (§  1,  subsec.  1)    29 

c.  "Arising  out  of  and  in  the  course  of  the  employment"    (§ 

1,  subsec.  1)    4O 

d.  Disabled  "from  earning  full  wages"   (§  1,  subsec.  2   (a))  72 

e.  Alternative  remedies  open  to  workmen  or  dependents  (§  1, 

subsec.  2    (b))    72 

f.  "Serious  and  wilful  misconduct"  of  workman  (§  1,  subsec. 

2    (c))     75 

g.  Arbitration  for  settlement  of  disputes   (§1,  subsec.  3)  ....  79 
h.  Recovery  of  compensation  where  action  for  damages  has 

failed  (§  1,  subsec.  4)    SI 

IV.  Notice  of  the  accident  and  claim  for  compensation  (§2)    S3 

a.  Text  of  §  2 S3 

b.  In  general S3 

c.  Form  and  contents  of  notice 84 

d.  To  whom  notice  may  be  given 85 

e.  Claim  for  compensation   SS 

f.  Time  within  which  claim  must  be  made SO 

g.  Employer  "prejudiced  in  his  defense"  80 

h.  Excuses  for  not  giving  notice  or  making  claim  in  time  ....  89 

V.  Substitution   of  scheme   approved  by   friendly   society   for  pro- 
visions of  the  act   (§3)    93 

a.  Text  of  §  3   93 

b.  Construction  of  this  section  94 

VI.  Liability  to  servants  of  contractors   (§  4)    95 

a.  Text  of  §   4   95 

b.  In  general    95 

c.  "In  the  course  of  or  for  the  purposes  of"  the  principal's 

"trade  or  business"    9O 

d.  Work  "undertaken  by  the  principal"  97 

e.  "Premises  on  which  the  principal  has  undertaken  to  exe- 

cute the  work"  97 

f.  Work  "ancillary  or  incidental"  to  the  trade  or  business  of 

the   principal    97 

VII.  Bankruptcy  or  winding  up  of  employer  under  contract  with  in- 
surers  (§  5)    98 

a.  Text  of  §  5  98 

b.  Proceedings  under  this  section    99> 

5 


CONTENTS. 

VIII.  Liability   of   third   person   whose   negligence   causes   the   injury 

(§    6)     100 

a.  Text  of  §  6  *OO 

b.  Joint  liability  of  employer  and  third  person 1O1 

c.  Employer's  right  to  indemnity  from  third  person 1O2 

IX.  Application  to  workmen  in  the  sea  service  (§  7)    1O3 

a.  Text  of  §   7    1O3 

b.  Proceedings  under  this  section  in  general 1O4 

c.  Persons  in  sea  service  excluded  from  §  7   (§  7,  subsec.  2)  1O5 
X.  Compensation  for  industrial  diseases    (§  8,  sched.  III.)    1O6 

a.  Text  of  act  relative  thereto   1O6 

1.  Text  of  §  S  1O6 

2.  Text  of  third  schedule  1OS 

b.  In    general     1O8 

c.  Meaning  of  phrase  "at  or  immediately  before"    109 

d.  Presumption  as  to  cause  of  disease  1O9 

e.  Contribution  by  other  employers   1O9 

f.  Functions  of  certifying  surgeons  and  medical  referees  ....  11O 
XI.  Application  to  workmen  under  the  Crown   (§  9)    Ill 

a.  Text  of  §   9    Ill 

XII.  Appointment  and  remuneration  or  arbitrators  and  medical  ref- 
erees   (§   1O)    Ill 

a.  Text  of  §  1O   Ill 

XIII.  Detention  of  ships  whose  owners  are  liable  for  compensation  (§ 

11)     Ill 

a.  Text  of  §  11  Ill 

b.  Proceedings  under  this  section 112 

XIV.  Reports  of  injuries  (§  12)    1 12 

a.  Text  of  §   12 112 

XV.  Definition  clauses  (§  13)    112 

a.  Text  of  §   13   1 12 

b.  Who  are  "employers"    1 13 

c.  "Contract  of  service"   114: 

d.  Who  are  "workmen"  115 

1.  In  general   115 

2.  Independent  contractors   1 18 

3.  "Casual"   employees    12O 

4.  Seamen    12O 

5.  Remuneration    121 

e.  Who  are  "dependents"  121 

1.  In  England  and  Ireland  and  in  Scotland  under  the 

Act  of  19O6 121 

2.  In  Scotland  under  the  Act  of  1897 125 

3.  In  the  Colonies   126 

XVI.  Appeals  in  Scotland  where  an  action  is  raised  independently  of 

the  act  (§  14)    127 

a.  Text  of  §  14 127 

b.  Effect  of  this  section  127 

XVII.  Termination  of  contracts  relieving  employers  from  liability;  re- 
certification  of  schemes    (§   15)     128 

a.  Text  of  §  15 128 

b.  Effect  of  this  section 128 

XVIII.  Repealing  clause   (§  16) 128 

a.  Text  of  §  16 128 

b.  Effect  of  this  section  129 

XIX.  Citing  clause   (§  17)    129 

a.  Text  of  §  17 .    129 


CONTENTS.  7 

XX.  Compensation  recoverable   (seized.  I.)    129 

a.  Text  of  schedule  1 129 

ft.  Meaning  of  phrase  "where  death  results  from  the  injury" 

(J  la)    132 

c.  Amount  recoverable  in  case  of  death  by  persons  dependent 

upon  the  workman's  earnings  (J  la)    134: 

d.  Amount  recoverable  by  workman  totally  or  partially  inca- 

pacitated   (f  Ib)    136 

e.  "Average  weekly  earnings11    (f  2)    149 

1 .  In  general  14:9 

2.  Grades    15O 

3.  Concurrent  employments  152 

4.  Absences  from  work  152 

5.  Period  of  employment  forming  basis  for  computa- 

tion of  average  weekly  earnings 155 

6.  Trade  or  calendar  weeks 156 

7.  Continuity  of  the  employment   157 

8.  Deductions     158 

9.  Remuneration  other  than  regular  wages 159 

f.  Medical  examination  of  injured  workman  (JJ  4,  14,  15)   . .   16O 

g.  Payments  to  dependents  (Jf  5—7)    162 

h.  Determination  of  question  who  are  dependents  (f  8)    ....   163 

i.  Varying  of  the  award  (f  9)    163 

j.  Review  of  weekly  payments   (J  16)    163 

k.  Payment  of  lump  sum    (f   17)     172 

I.  Set-offs  against  weekly  payments  (J  19)   174 

XXI.  Arbitration  (sched.  II.)   174 

a.  Text  of  schedule  II 174 

ft.  Construction  of  these  provisions 177 

1.  Functions  of  committee's  representative  of  the  em- 

ployer and  his  workmen  177 

2.  Powers  and  functions  of  arbitrators  177 

3.  Appeals  175 

4.  Costs     181 

5.  Registration  of  memorandums  of  agreements 184 

6.  Proceedings  by  "parties  interested" 157 

7.  Enforcement  of  awards  and  agreements 188 

8.  Rectification  of  the  register    188 

9.  Agreements  as  to  lump  sums 189 

10.  Court  in  which  proceedings  may  be  brought 19O 

11.  Deductions  from  awards 19O 

12.  Reference  to  medical  referees 19O 

13.  Provisions  applicable  to  Scotland  only 101 

XXII.  Act  of  1900  1P1 

a.  Text  of  the  act 

b.  Effect  of  these  provisions 

XXIII.  Employments  to  which  the  act  of  1897  was  applicable 
a.  Text  of  §  7  of  the  act  of  1897 
ft.  Scope  and  effect  of  these  provisions  in  general 103 

c.  Meaning  of  the  phrase  "on  or  in  or  about"   103 

1.  In  general   103 

2.  On,  in  or  about  a  "railroad"   103 

3.  —a  "factory"    104 

4.  —a   "mine" 105 

5.  — "engineering  work"    105 

6.  —"premises  on  which  principal  has  undertaken  to 

execute  the  work"   100 


CONTENTS. 

(/.  Buildings  "being  constructed  or  repaired  or  demolished  by 

means  of  a  scaffolding  196 

1.  What  is  a  "building"   196 

2.  Height  of  building 196 

3.  "Being  constructed  or  repaired"   197 

4.  What  is  a  "scaffolding" 198 

e.  Meaning  of  t(railroad"   2OO 

f.  —of  "factory"   2OO 

1-  In  general 2OO 

2.  "Premises  wherein  steam,  water  or  other  mechani- 

cal power  is  used  in  aid  of  the  manufacturing 

process"    2OO 

3.  Iron  mills    20 1 

4t.  "Premises  wherein    .     .     .     any  manual  labor  is  ex- 
ercised by  way  of  trade  or  for  purposes  of  gain"  .  2O1 

5.  Premises  in  which   "manual  labor  is  exercised  in 

adapting  an  article  for  sale"  2O2 

6.  "Shipbuilding  yards"    2O2 

7.  "Bottle  washing  works"  2O2 

8.  Electrical  stations  for  lighting  any   "street,   public 

place,"  etc 2O2 

9.  "Dock,  wharf,  quay"    2O3 

10.  "Warehouse"    2O6 

11.  Machinery  used  in  the  process  of  loading  or  unload- 

ing a  ship 2O7 

12.  "Machinery   temporarily   used   for   the   purpose   of 

constructing  a  building"   2O8 

g.  — of  "engineering  work,"   2O8 

h.  —of   "mine"    2O9 

i.  —of    "undertakers"     2O9 

1.  In  the  case  of  a  factory 2O9 

2.  In  the  case  of  engineering  work  212 

j.  When  workmen  employed  in  shipbuilding  yard  are  not  ex- 
cluded from  provisions  of  the  act 213 

Part  C.  American  decisions,  213. 

XXIV.  Introduction  to  American  decisions 213 

XXV.  Constitutionality  of  American  statutes   4O9 

XXVI.  Conflict  of  laws 443 

XXVII.  Extraterritorial   effect   of  American   statutes    443 

XXVIII.  Limitation  of  application  of  statutes  by  Federal  laws 461 

XXIX.  Construction,  effect  and  application  of  statutes  generally 215 

a.  Strict  or  liberal  construction  215 

b.  Retroactive  effect  of  statutes 216 

c.  Occupations  to  which  acts  are  applicable 21 6 

XXX.  Election  to  come  in  under  optional  act 219 

XXXI.  Exclusiveness  of  remedy  furnished  by  statute  223 

a.  In  general   223 

b.  Where  injury  is  caused  by  wilful  or  intentional  act  of  em- 

ployer   224 

c.  Bights  of  parent  where  minor  employee  is  injured 224 

d.  Rights   and  remedies   where   negligence   of   third  person 

causes  the  injury  225 

e.  Right  to  contract  out  of  the  statute  227 

XXXII.  "Accident"  and  "personal  injury"   227 


CONTENTS.  9 

XXXIII.  Injuries  "arising  out  of  and  in  the  course  of"  the  employment  . .   232 

XXXIV.  "Serious  or  wilful  misconduct"  of  employee 243 

XXXV.  Notice  of  injury;  "actual  Knowledge"  of  employer 244 

XXXVI.  Who  are  "employers"   245 

XXXVII.  Who  are  "employees"   246 

a.  In  general   246 

b.  Independent  contractors 247 

c.  "Casual"   employees    • 247 

XXXVIII.  Who  are  "dependents" 24S 

XXXIX.  Compensation  recoverable  253 

a.  By  dependents 253 

b.  By  incapacitated  employee    254 

XL.  Insurance   funds    265 

XLI.  Appeal  and  review   266 

XLII.  Procedure  in  general  -371 

\ 

Part  D.   Leading  American  cases  printed  in  full,  273-483. 

On  recovery  of  compensation  for  incapacity  caused  by  disease 

Vennen  v.  New  Dells  Lumber  Co 273 

Re  Hurle 279 

Great  Western  Power  Co.  v.  Pillsbury 281 

Adams  v.  Acme  White  Lead  &  Color  Works 283 

Annotation 289 

On  hernia   as  an   "accident"   or   "personal  injury" 

Zappala  v.  Industrial  Insurance  Commission 295 

Poccardi  v.  Public  Service  Commission 299 

Annotation 3O3 

On  compensation  -for  injuries  by  assault 

Re  Reithel  304 

Re  McNicol     3O6 

Annotation     3O9 

On  compensation  for  injuries  received  while  on  the  street 

Hopkins  v.  Michigan  Sugar  Co 31O 

Annotation    314 

On  compensation  for  injuries  received  while  seeking  toilet  facilities 

Zabriskie  v.  Erie  Railroad  Co 315 

Annotation 31 7 

On  compensation  for  injuries  received  while  procuring  refreshments 

Re  Sundine   31* 

Annotation    32O 

On  compensation  for  injuries  received  while  trying  to  save  personal  belong- 
ings 

Re  Brightman    321 

Annotation    322 

On  compensation  -for  loss  of  eye  through  infection 

McCoy  v.  Michigan  Screw  Co 323 

Annotation    326 

On  compensation  for  injuries  while  going  to  and  from  work. 

Milwaukee  v.  Althofl   327 

De  Constantin  v.  Public  Service  Commission  329 

Annotation    331 

On  compensation  where  insane  workman  commits  suicide  or  suffers  per- 
sonal injuries 

Re  Standard  Acci.  Ins.  Co.    (Re  Sponatski) 333 

Milliken  v.  Travelers'  Insurance  Co 330 

Annotation  339 


10-26  CONTENTS. 

On  compensation  for  death  or  injury  by  lightning 

Hoenig  v.  Industrial  Commission   339 

Klawinski  v.  Lake  Shore  <£•  M.  S.  R.  Co 342 

State  ex  rel.  Peoples  Coal  &  Ice  Co.  v.  District  Court 344 

Annotation 347 

On  intoxication  as  affecting  right  to  compensation 

Nekoosa-Edwards  Paper  Co.  v.  Industrial  Commission 348 

Annotation     351 

On  what  constitutes  "serious  and  wilful  misconduct" 

Clem  v.  Chalmers  Motor  Co 352 

Annotation 355 

On  rights  and  remedies  where  injuries  are  caused  by  negligence  of  third 
persona 

Peet  v.   Mills    358 

Annotation     36O 

On  what  are  "casual  employees" 

Gaynor  v.  Standard  Accident  Insurance  Co 363 

Annotation 365 

On  when  man  and  wife  are  "living  together" 

Northwestern  Iron  Co.  v.  Industrial  Commission 366 

Annotation     37O 

On  "average  weekly  earnings"  of  workman  employed  by  several  employers 

Gillen  v.  Ocean  Accident  &  Guarantee  Corporation 37 1 

Annotation 373 

On  consideration  of  possible  earnings  in  other  employments 

Mellen  Lumber  Co.  v.  Industrial  Commission  374 

Annotation     377 

On  inability  to  get  work  as  "incapacity  for  work" 

Re   Sullivan    37* 

Annotation     38O 

On  effect  of  refusal  of  injured  workman  to  submit  to  operation 

Jendrus  v.  Detroit  Steel  Products  Co 3*1 

Annotation     357 

On  constitutionality  of  workmen's  compensation  and  industrial  insurance 

statutes 
Kentucky  State  Journal  Co.  v.  Workmen's  Compensation  Board  389 

Jensen  v.  Southern  Pacific  Co 4O3 

Annotation     409 

On  extraterritorial  effect  of  workmen's  compensation  acts;  conflict  of  laws 

Pendar  v.  H.  &  B.  American  Machine  Co 428 

Reynolds  v.  Day 432 

Kennerson  v.  Thames  Towboat  Co 436 

Annotation    443 

On  limitation  of  application  of  state  compensation  statutes  by  Federal  laws 

State  ex  rel.  Jarvis  v.  Daggett  446 

Staley  v.  Illinois  Central  R.  Co 450 

Annotation     461 

On  allowance  for  services  of  physician  and  nurse  for  injured  workman 

Milwaukee  v.  Miller  [  1  ]    465 

On  compensation  for  death  by  drowning 

Boody  v.  K.  &  C.  Mfg.  Co.  [1O]    474 

On  compensation  where  injury  is  aggravated  by  sport 

Kill  v.  Industrial  Commission    [14]    47* 

On  compensation  for  injuries  while  performing  work  not  employed  to  do 

Spooner  v.  Detroit  Saturday  Night  Co.   [17]    481 

On  compensation  for  injuries  while  going  to  push  time  clock 

Rayner  v.  Sligh  Furniture  Co.    [22]    456 


WORKMEN'S  COMPENSATION. 


Part  A.  Introductory. 
I.  Introduction  and  scope  of  note. 

The  purpose  of  this  annotation  is  to 
bring  together  the  English  and  Colonial 
and  American  cases  involving  the  appli- 
cation and  effect  of  the  so-called  work- 
men's compensation  acts.  The  most  radi- 
cal departure  in  these  statutes  from 
the  common  law  or  the  previous  statu- 
tory law  is  the  awarding  of  compensa- 
tion in  cases  of  injuries  to  workmen  in 
the  absence  of  any  negligence,  actual  or 
imputed,  on  the  part  of  the  employer. 
The  defenses  of  coservice  and  assump- 
tion of  risk  are  entirely  abrogated,  as  is 
the  defense  of  contributory  negligence, 
except  in  cases  where  the  negligence  of 
the  injured  servant  amounts  to  serious 
or  wilful  misconduct.  In  support  of 
these  advanced  steps,  the  injury  to  a 
workman  has  frequently  been  compared 
to  the  breaking  of  a  machine,  and  as  the 
cost  of  repairing  the  latter  is  borne  by 
the  industry,  so  should  the  burden  of 
injuries  to  workmen  be  considered  as 
an  incidental  expense  of  the  business.1 

In  addition  to  giving  compensation  for 


injuries,  for  which  there  had  been  no 
previous  common-law  or  statutory  rem- 
edy, the  attempt  has  also  been  made  to 
simplify  the  procedure  so  as  to  make  the 
recovery  quickly,  easily,  and  inexpen- 
sively obtainable,  thus  doing  away  with 
the  great  delay  and  expense  which  so 
often  attended  former  actions  for  per- 
sonal injuries  to  employees.2 

In  an  annotation  of  this  character,  an 
investigation  of  the  causes  leading  up  to 
the  passage  of  these  acts,  and  the  ethical, 
humanitarian,  or  sociological  theories  un- 
j  derlying  them,  would  be  out  of  place. 
The  discussion  will  be  confined  to  the 
case  law  upon  the  subject,  and  the  judi- 
cial conclusions  as  to  the  meaning  of  the 
various  provisions  of  the  acts  will  be  set 
forth,  and,  as  far  as  possible,  harmon- 
ized, so  that  the  general  applicability 
and  effect  of  the  statute,  as  judicially 
interpreted,  will  be  shown  for  future 
guidance. 

As  these  statutes  constitute  an  entire- 
ly new  departure  in  the  law  of  employ- 
ers' liability,  it  is  not  surprising  that 
there  are  numerous  conflicting  decisions, 
many  of  which  are  due  to  the  inconsist- 


1  The  act  means  that,  apart  from  negli- 
gence, "the  industry  itself  should  be  taxed 
with  an  obligation  to  indemnify  the  sufferer 
for  what  was  an  'accident'  causing  dam- 
age." Lord  Halsbury,  L.  C.,  in  Brintons  v. 
Turvey  [1905]  A.  C.  (Eng.)  230,  74  L.  J. 
K.  B.  N.  S.  474,  53  Week.  Rep.  641,  92  L.  T. 
N.  S.  578,  21  Times  L.  R.  444,  2  Ann.  Cas. 
137. 

The  essential  operation  of  the  statutes 
herein  discussed  is,  broadly  speaking,  that, 
irrespective  of  any  negligence  or  miscon- 
duct on  the  master's  part,  the  classes  of 
servants  to  whom  they  are  applicable  are, 
in  a  certain  sense,  insured  against  any 
accident  that  takes  place  in  the  course  of 
their  employment.  Cooper  v.  Wright  [1902] 
A.  C.  (Eng.)  302,  71  L.  J.  K.  B.  N.  S.  642, 
51  Week.  Rep.  12,  86  L.  T.  N.  S.  776,  18 
Times  L.  R.  622,  per  Lord  Halsbury. 

In  11  Journ.  of  Soc.  of  Comparative  Legis- 
lation, p.  55,  will  be  found  an  interesting 
and  instructive  criticism  of  the  unsatisfac- 
tory features  of  this  act.  The  learned  con- 
tributor, Sir  J.  G.  Hill,  also  gives  much 
useful  information  concerning  similar  legis- 
lation in  the  countries  of  Continental  Europe 
and  elsewhere.  He  remarks  that  "the  justi- 
fication put  forward  for  these  new  laws  is 
that  it  is  expedient  in  the  public  interest 
L.R.A.1916A.  27 


to  throw  the  risk  of  accidents  upon  the 
trade  in  which  they  occur,  and  that  the 
employer  can  recoup  himself  for  the  cost 
incurred  by  him  by  raising  the  price  of 
his  productions  and  by  reducing  wages." 

2  After  mentioning  certain  difficulties  en- 
countered  by   an   injured   workman    in   at- 
tempting  to   recover   damages   at   common 
law  or  under  the  employers'  liability  act, 
Lord  Brampton,  in  Cooper  v.  Wright  [1902] 
A.  C.    (Eng.)    302,  said:      "Added  to  these 
obstacles,  the  la\v   itself  was  for  the  most 
part   too  uncertain,   too   dilatory,  and   far 
too    expensive    for    an    ordinary    workman 
to  embark  in." 

Lord  Stirling,  in  Field  v.  Longden  [1902] 
1  K.  B.  (Eng.)  47,  71  L.  J.  K.  B.  N.  S.  120, 
66  J.  P.  291,  50  Week.  Rep.  212,  85  L.  T. 
N.  S.  571,  18  Times  L.  R.  65,  observed  that 
the  compensation  act  "was  intended  for 
the  benefit  of  workmen,  and  not  for  that 
of  the  legal  profession." 

3  Lord    Brampton,    in    Cooper    v.    Wright 
(Eng.)    supra,  stated  that  the  English  act 
was  so  framed  as  to  provoke  rather  than 
to  minimize  litigation. 

In  Oliver  v.  Nautilus  Steam  Shipping  Co. 
[1903]  2  K.  B.  (Eng.)  639,  Lord  Vaughan 
Williams  said:  "The  act  is  not  very  easy 
to  construe.  It  is  an  act  as  to  which  I 


28 


WORKMEN'S  COMPENSATION. 


encies  and  crudities  of  the  acts  them- 
selves,8 and  many  others  are  due  to  the 
varying  views  taken  by  the  different 
judges  before  whom  the  questions  arose.* 

The  compensation  principle  originated 
in  Continental  Europe  long  before  it  was 
adopted  in  England,  and  statutes  em- 
bracing this  principle  were  in  force  in 
upwards  of  twenty-five  jurisdictions  be- 
fore any  similar  act  was  passed  in  the 
United  States.5 

The  first  English  act  was  passed  in 
1897,  and  the  provisions  of  this  act  were 
extended  to  agricultural  laborers  by  the 
act  of  1900.  The  second  act,  passed  in 
1906,  greatly  extended  the  application  of 
the  statute,  and  simplified  some  of  the 
complicated  sections  found  in  the  earlier 
act. 

The  compensation  principle  has  spread 
so  quickly  and  so  broadly  among  the 
American  jurisdictions  that  it  is  proba- 
ble that,  in  the  near  future,  compensa- 
tion acts  will  be  in  force  in  all  of  the 
states  of  the  Union,  and  that  these  acts 
will  be  harmonized  and  the  decisions 
thereon  grow  more  uniform,  so  that  there 
will  be  no  more  difficulty  in  construing 
and  applying  these  acts  than  in  applying 
any  other  statutes  which  are  applicable 
to  so  broad  a  field. 

Considering  the  length  of  the  various 
statutes,  it  would  be  impracticable  even 
if  it  would  be  useful,  to  print  all  of  the 
statutes  in  full;  but  as  the  American 
statutes  are  patterned  more  or  less  close- 
ly after  the  English  act,  it  has  been 
deemed  wise  to  print  the  text  of  the 
latter  in  full. 

The  English  and  Colonial  decisions 
will  be  discussed  together,  and  the 
American  cases  will  then  be  taken  up 
and  grouped,  so  far  as  possible,  accord- 
ing to  the  principle  involved,  although  as 
the  acts  differ  radically  in  many  particu- 
lars, and  the  decisions  covering  any  one 
point  are  not  very  plentiful,  logical  treat- 
ment cannot  in  all  cases  be  attained. 


By  numerous  cross  references  between 
the  division  of  the  note  discussing  the 
English  cases,  and  that  treating  the 
American  decisions,  it  is  hoped  to  facili- 
tate the  comparison  of  decisions  con- 
struing similar  provisions  in  the  various 
acts. 

Part  B.  English  and  Colonial  decisions. 
II.  In  general. 

The  complete  text  of  the  English  act 
of  1906  is  given  below,  with  such  refer- 
ences to  the  act  of  1897  as  will  indicate 
to  the  reader  the  material  changes  made. 
Of  course,  the  most  essential  change  was 
the  extension  of  the  remedy  to  all  em- 
ployments, instead  of  to  certain  desig- 
nated employments.  Wherever  there  has 
been  a  change  of  sufficient  importance 
to  be  noted,  brackets  have  been  used  to 
show  .the  change,  and  bracketed  matter 
without  further  explanation  indicates 
parts  of  the  original  act  which  were 
omitted  in  the  act  of  1906.  Where  the 
provisions  of  the  two  acts  are  the  same, 
no  attempt  has  been  made  to  differenti- 
ate the  cases. 

In  England,  appeals  from  the  findings 
of  the  arbitrator  upon  questions  of  law 
lie  only  to  the  court  of  appeal,  and  the 
great  body  of  decisions  is  from  that 
court.  When  the  case  has  been  decided 
by  some  other  court,  that  fact  will  be 
noted  unless  it  appears  from  the  con- 
text or  from  the  form  of  the  citation. 
The  same  is  true  in  respect  to  the  Irish 
decisions.  In  Scotland,  appeals  lie  to 
the  court  of  sessions,  and  if  the  deci- 
sion is  by  any  other  court,  that  fact 
will  also  be  noted. 

The  following  British  colonies,  among 
possibly  others,  have  statutes  modelled 
closely  after  the  English  Acts:  Alberta, 
British  Columbia,  Manitoba,  Nova  Scotia, 
Quebec,  New  South  Wales,  New  Zea- 
land, Queensland,  and  Western  Australia. 


think   I   may   properly   say   that   the   diffi-  j 
culties  of  construction  are  so  great  that  it 
is  not  desirable  that  judges  should  decide 
more  than  is  absolutely  necessary  for  the 
decision  of  the  particular  case  before  them." 

4  In    Sheehy    v.    Great    S.    &    W.    R.    Co. 
[1913]  W.  C.  &  Ins.  Rep.  404,  47  Ir.  Law 
Times  161,  6  B.  W.  C.  C.  927,  Holmes,  L.  J., 
said:      "There    is    nothing    more    tiresome, 
and,  I   might   add,  more  unprofitable  than 
to  try   to  reconcile   propositions   and  dicta 
of   judges,   including   my   own,   relating   to 
the    workmen's    compensation    act,    and    I 
shall  not  now  attempt  the  task." 

5  "According  to  Bulletin  No.  90  (Septem- 
ber 1910)   of  the  United  States  Bureau  of 
Labor,  pp.  723-748,  the  workmen's  compen- 
sation acts  outside  the  United  States,  to- 
L.R.A.1916A. 


gether  with  the  dates  of  first  enactment, 
are:  Germany  (1884);  Austria  (1887);  Nor- 
way (1894);  Finland  (1895);  Great  Britain 
(1897);  Denmark  (1898);  Italy  (1898); 
France  (1898);  Spain  (1900);  New  Zealand 
(1900) ;  South  Australia  (1900) ;  New  South 
Wales  (1901);  Netherlands  (1901);  Greece 
(1901):  Sweden  (1901);  Western  Australia 
(1902);  Luxembourg  (1902);  British  Co- 
lumbia (1902);  Russia  (1903);  Belgium 
(1903) ;  Cape  of  Good  Hope  (1905) ;  Queens- 
land (1905);  Hungary  (1907);  Transvaal 
(1907);  Alberta  (1908);  Quebec  (1909). 
The  statutes  in  force  in  those  twenty-six 
jurisdictions  in  1909  are  summarized  in  the 
same  place."  Article  by  Eugene  Wam- 
baugh,  25  Harvard  L.  Rev.  132. 


INJURY  BY  ACCIDENT. 


29 


The  Colonial  cases  will  be  discussed  in 
connection  with  the  British  cases  in- 
volving similar  points. 

III.  Application   of  the   statute   gener- 
ally  (§  1). 

As  to  the  application  of  the  statute 
in  cases  of  industrial  diseases,  see  post, 
106. 

a.  Text  of  §  1. 

Section  1  (1).  If  in  any  employment 
[to  which  this  act  applies]  personal  in- 
jury by  accident  arising  out  of  and  in 
the  course  of  the  employment  is  caused 
to  a  workman,  his  employer  shall,  sub- 
ject as  hereinafter  mentioned,  be  liable 
to  pay  compensation  in  accordance  with 
the  first  schedule  to  this  act. 

(2)  Provided   that    (a)    the   employer 
shall  not  be  liable  under  this  act  in  re- 
spect of  any  injury  which  does  not  dis- 
able the   workman   for  a  period  of  at 
least  one  [two,  in  the  original  act]  week 
from  earning  full  wages  at  the  work  at 
which  he  was  employed: 

(b)  When  the  injury  was  caused  by 
the  personal  negligence  or  wilful  act  of 
the    employer   or   of    some    person    for 
whose   act   or   default   the   employer  is 
responsible,  nothing  in  this  act  shall  af- 
fect any  civil  liability  of  the  employer, 
but  in  that  case  the  workman  may,  at 
his  option,  either  claim  compensation  un- 
der this  act  or  take  proceedings  inde- 
pendently of  this  act;  but  the  employer 
shall  not  be  liable  to  pay  compensation 
for  injury   to   a   workman   by   accident 
arising  out  of  and  in  the  course  of  the 
employment,  both  independently  of  and 
also  under  this  act,  and  shall  not  be  lia- 
ble to  any  proceedings  independently  of 
this  act,  except  in  case  of  such  personal 
negligence  or  wilful  act  as  aforesaid: 

(c)  If  it  is  proved  that  the  injury  to 
a  workman  is  attributable  to  the  serious 
and  wilful  misconduct  of  that  workman, 
any  compensation  claimed  in  respect  of 
that  injury  shall,  unless  the  injury  re- 
sults in  death  or  serious  and  permanent 
disablement,   be   disallowed,   the   excep- 
tion as  to  injuries  resulting  in  death  or 
serious  and  permanent  disablement  was 
not  in  the  original  act. 

(3)  If  any  question  arises  in  any  pro- 
ceedings under  this  act  as  to  the  lia- 
bility to  pay  compensation  under  this  act 
(including  any  question  as  to  whether 
the  person  injured  is  a  workman  to  whom 
this  act  applies),  or  as  to  the  amount 
or  duration  of  compensation  under  this 
act,  the  question,  if  not  settled  by  agree- 
ment, shall,  subject  to  the  provisions  of 
the  first  schedule  to  this  act,  be  settled 
L.R.A.1916A. 


by  arbitration,  in  accordance  with  the 
second  schedule  to  this  act. 

(4)  If,  within  the  time  hereinafter  in 
this  act  limited  for  taking  proceedings, 
an  action  is  brought  to  recover  damages 
independently    of    this    act    for    injury 
caused  by  any  accident,  and  it  is  deter- 
mined in  such  action  that  the  injury  is 
one  for  which  the  employer  is  not  liable 
in  such  action,  but  that  he  would  have 
been  liable  to  pay  compensation  under 
the   provisions   of   this   act,   the   action 
shall    be    dismissed;    but    the    court    in 
which  the  action  is  tried  shall,  if  the 
plaintiff    so    choose,    proceed    to    assess 
such  compensation,  but  may  deduct  from 
such   compensation   all   or   part   of   the 
costs  which,  in  its  judgment,  have  been 
caused  by  the  plaintiff  bringing  the  ac- 
tion  instead   of   proceeding   under   this 
act.     In  any  proceeding  under  this  sub- 
section, when  the  court  assesses  the  com- 
pensation it  shall  give  a  certificate  of 
the  compensation  it  has  awarded  and  the 
directions  it  has  given  as  to  the  deduc- 
tion for  costs,  and  such  certificate  shall 
have  the  force  and  effect  of  an  award 
under  this  act. 

(5)  Nothing  in  this   act   shall   affect 
any  proceeding  for  a  fine  under  the  en- 
actments relating  to  mines,  factories,  or 
workshops,   or   the    application    of   any 
such  fine,  but  if  any  such  fine,  or  any 
part  thereof,  has  been  applied  for  the 
benefit  of  the  person  injured,  the  amount 
so  applied  shall  be  taken  into  account  in 
estimating  the  compensation  under  this 
act.6 

ft.  "Injury  ftj/  accident"    (§   1,  subsec. 
1). 

As  to  what  constitutes  an  "accident" 
or  "personal  injury"  within  the  meaning 
of  the  American  statutes,  see  post,  227. 

There  has  been  considerable  conflict  as 
to  the  meaning  of  the  word  "accident" 
as  used  in  the  British  act.  Lord  Hals- 
bury  has  said  that  it  was  to  be  inter- 
preted according  to  its  ordinary  and 
popular  meaning,7  and  similar  language 
was  used  in  another  case  by  Lord 
Macnaghten.8  But  in  an  Irish  case,  the 
Lord  Chancellor  observed  that  "the  word 


6  The  enactments  here  referred  to  are 
the  coal  mines  regulation  act  1887,  the 
metalliferous  mines  regulation  act  1872, 
and  the  factory  and  workshop  act  1901. 

TBrintons  v.  Turvey  [1905]  A.  C.  (Eng.) 
233,  74  L.  J.  K.  B.  N.  S.  474,  53  Week.  Rep. 
641,  92  L.  T.  N.  S.  578,  21  Times  L.  R.  444, 
2  Ann.  Cas.  137. 

SFenton  v.  Thorley  [1903]  A.  C.  (Eng.) 
443,  72  L.  J.  K.  B.  N.  S.  787,  52  Week.  Rep. 
81,  89  L.  T.  N.  S.  314,  19  Times  L.  R.  684. 
In  this  case  Lord  Lindley  said  that  the 


30 


WORKMEN'S  COMPENSATION. 


'accident'  has,  when  used  in  this  stat- 
ute, long  ceased  to  have  the  meaning 
the  man  in  the  street  would  attribute  to 
it."  9 

In  a  comparatively  early  case  in  the 
court  of  appeal,  it  was  said  that  the 
word  involves  the  idea  of  something  for- 
tuitous and  unexpected.10  But  the  use 
of  the  word  "fortuitous"  has  been  criti- 
cized in  a  House  of  Lords  decision  as 
meaning  either  just  the  same  as  acci- 
dental, or  else  introducing  the  element 
of  "haphazard,"  which  element  was  mis- 
leading, and  not  warranted  by  the  act; 
and  it  was  held  that  the  word  "acci- 
dental" was  used  in  its  ordinary  and 
popular  sense.11 


In  the  House  of  Lords,  an  accident  has 
been  defined  as  "an  unlooked-for  or  un- 
toward event  which  was  not  expected  or 
designed;  and  as  "an  unintended  and 
unexpected  occurrence  which  produces 
hurt  or  loss ;" 12  it  includes  or  denotes 
"any  unexpected  personal  injury  result- 
ing to  the  workman,  in  the  course  of  his 
employment,  from  any  unlooked-for  mis- 
hap or  occurrence."  "  Whether  or  not 
the  injury  is  an  untoward  event,  not  ex- 
pected, is  to  be  determined  from  the 
standpoint  of  the  workman,  and  not 
from  a  medical  aspect.14 

It  is  well  settled  that  to  be  entitled  to 
compensation  for  "personal  injury  by 
accident"  there  must  be  a  definite  time, 
place,  and  circumstance  to  which  the  in- 


word  is  not  a  technical  legal  word  with  a 
clearly   defined    meaning. 

9Sheerin  v.  Clayton  [1910]  2  I.  R.  (Ir.) 
105,  3  B.  W.  C.  C.  583. 

10  Hensey  v.  White  [1900]  1  Q.  B.  (Eng.) 
481,  81  L.  T.  N.  S.  767,  48  Week.  Rep.  257, 
69  L.  J.  Q.  B.  N.  S.  188,  63  J.  P.  804,  16 
Times  L.  R.  64. 

11  Fenton  v.  Thorley  [1903]  A.  C.   (Eng.) 
443,  72  L.  J.  K.  B.  N.  S.  787,  53  Week.  Rep. 
81,  89  L.  T.  N.  S.  314,  19  Times  L.  R.  684. 
Lord    Macnaghten    said:      "It    does    seem 
to  me  extraordinary   that  anybody  should 
suppose  that  when  the  advantage  of  insur- 
ance  against   accident   at   their   employers' 
expense  was  being  conferred  on  workmen, 
Parliament  could  have  intended  to  exclude 
from   the  benefit   of  the  act  some   injuries 
ordinarily    described    as    'accidents'    which 
beyond  all  others  merit  favorable  consider- 
ation in  the  interest  of  workmen  and  em- 
ployers  alike.     A   man   injures   himself   by 
doing   some   stupid  thing,   and   it   is   calli-d 
an  accident,  and  he  gets  the  benefit  of  the 
insurance.     It  may  even  be  his  own  fault, 
and   yet   compensation   is   not  to  be  disal- 
lowed unless  the   injury  is  attributable   to 
'serious  and  wilful  misconduct'  on  his  part. 
A  man  injures  himself  suddenly  and  unex- 
pectedly   by    throwing    all    his    might  and 
all  his  strength  and  all  his  energy  into  his 
work,  by  doing  his  very  best  and  utmost  for 
his  employer,  not  sparing  himself  or  taking 
thought  of  what  may  come  upon  him,  and 
then  he  is  to  be  told  that  his  case  is  out- 
side   the    act   because    he    exerted    himself 
deliberately,  and  there  was  an  entire  lack 
of  the  fortuitous  element!     I  cannot  think 
that  that  is  right.     I  do  think  that  if  such 
were  held   to   be   the   true   construction   of 
the   act,   the   result   would   not   be   for   the 
good  of  the  men,  nor  for  the  good  of  the 
employers  either,  in  the  long  run.    Certain- 
ly   it    would    not    conduce    to    honesty    or 
thoroughness  in  work.     It  would  lead  men 
to  shirk  and  hang  back,  and  try  to   shift 
a  burthen  which  might  possibly  prove  too 
heavy  for  them  on  to  the  shoulders  of  their 
comrades." 

Recovery  has  been  allowed  where  a  work- 
man while  engaged  in  chipping  the  burs 
L.R.A.1916A. 


from  a  steel  plate  with  a  cold  chisel  was 
injured  by  a  piece  of  the  steel  so  chipped 
off,  which  struck  him  in  the  eye.  Neville 
v.  Kelly  Bros.  (1907)  13  B.  C.  125.  The 
somewhat  singular  contention  rejected  by 
the  court  was  that  the  occurrence  in  ques- 
tion was  an  expected  liability  naturally 
resulting  from  the  occupation  in  which  the 
workman  was  engaged,  and  therefore  did 
not  involve  the  element  of  the  fortuitous,, 
apart  from  which  an  "accident"  is  not 
predicable. 

12  In   Ismay  v.  Williamson    [1908]   A.   C. 
(Eng.)  437,  77  L.  J.  P.  C.  N.  S.  107,  99  L, 
T.  N.  S.  595,  24  Times  L.  R.  881,  52  Sol.  Jo. 
713,    a    workman    engaged    to    rake    ashes 
from  the  furnaces  of  a  steamship  suffered 
a  heat  stroke.     It  was  contended  that  this 
was  not  an  accident,  but  Lord  Ashbourne 
said:     "If  the  act  is  to  be  interpreted  ac- 
cording to  its  'ordinary  and  popular  mean- 
ing,'  as   Lord  Halsbury   said   was   right   in 
Brintons    v.    Turvey    [1905]    A.    C.    (Eng.) 
233,  74  L.  J.  K.  B.  N.  S.  474,  53  Week.  Rep. 
641,  92  L.  T.  N.  S.  578,  21  Times  L.  R.  444r 
2  Ann.  Cas.  137,  would  not  the  generality 
of  mankind  say  that  what  occurred  was  an 
injury  caused  by  an  accident?     The  author- 
ities support  this  view.    In  Fenton  v.  Thor- 
ley   (Eng.)    supra,   where  a  man   ruptured 
himself  in  an  exertion  during  his  employ- 
ment, Lord  Macnaghten  laid  down  that  an 
'accident  is  used  in  the  popular  and  ordinary 
sense  of  the  word,  as  denoting  an  unlooked- 
for   mishap,   or   an   untoward   event   which 
is  not  expected  or  designed.'     Lord  Lindley 
in  the  same  case  said  that  'in  the  act  the 
word  is  used  in  a  very  loose  way,'  that  it 
meant  'any  unintended  and  unexpected  oc- 
currence which  produces  hurt  or  loss.' " 

13  Lord  Shand  in  Fenton  v.  Thorley  (Eng.) 
supra. 

14  Fulford    v..  Northfleet   Coal    &    Ballast 
Co.  (1907;  C.  C.)   1  B.  W.  C.  C.  (Eng.)  222. 

In  Clover  v.  Hughes  [1910]  A.  C.  (Eng.) 
242,  3  B.  W.  C.  C.  275,  Lord  Loreburn,  L.  C., 
said:  "I  cannot  agree  with  the  argument 
presented  to  your  Lordships,  that  you  are 
to  ask  whether  a  doctor  acquainted  with 
the  man's  condition  would  have  expected  it. 
Were  that  the  right  view,  then  it  would 


INJURY  BY  ACCIDENT. 


31 


jury  can  be  referred.16  But  an  accident 
in  the  sense  of  the  act  need  not  be 
an  extraneous  circumstance.16  The  word 
"accident"  is  not  "made  inappropriate  by 
the  fact  that  the  man  hurt  himself ;" 17 
or  by  reason  of  the  fact  that  "it  was 
caused  by  deliberate  violence"  on  the 
part  of  third  persons.18 

A  nervous  shock  causing  incapacity  to 
work  is  as  much  "personal  injury  by 
accident"  as  is  a  physical  injury.19 

Where  a  scheme,  under  §  3,  purports 
to  be  intended  as  a  substitute  for  the 
act,  the  word  "accident"  in  the  scheme 
will  be  construed  as  having  the  same 


meaning  as  in  the  act,  and  to  include 
disablement  from  disease,  described  in 
§  8  of  the  act.20 

ff  a  workman  has  suffered  an  injury 
by  accident,  he  will  not  be  deprived  of 
compensation  merely  because  something 
else  occurs  to  produce  incapacity;  as 
where  he  would  likewise  have  been  in- 
capacitated from  heart  disease,21  or 
where  he  has  been  convicted  of  a  crime 
and  confined  in  prison.22 

It  has  been  pointed  out  that  the  stat- 
ute does  not  in  its  terms  refer  to  com- 
pensation for  an  "accident,"  but  to  "per- 
sonal injuries  by  accident."28  But  the 


not  be  an  accident  if  a  man  very  liable  to 
fainting  fits  fell  in  a  faint  from  a  ladder, 
and  hurt  himself." 

15  "Except  in  the  case  of  these  industrial 
or  scheduled  diseases,  unless  the  applicant 
can  indicate  the  time,  the  day,  and  circum- 
stance, and  place,  in  which  the  accident  has 
occurred,  by  means  of  some  definite  event, 
the  case  cannot  be  brought  within  the  gen- 
eral purview  of  the  act,  and  does  not 
entitle  the  workman  or  his  dependents  to 
compensation."  Eke  v.  Hart-Dyke  [1910] 
2  K.  B.  (Eng.)  677,  3  N.  C.  C.  A.  230. 

Tn  Alloa  Coal  Co.  v.  Drylie  (Ct.  of  Sess.) 
[1913]  W.  C.  &  Tns.  Rep.  213,  6  B.  W.  C.  C. 
398,  50  Scot.  L.  R.  350,  Lord  Dundas 
said:  "I  think  one  may  postulate  as  a 
result  of  all  the  decisions  that  you  must 
have  a  definite  'accident'  of  some  sort, — not 
necessarily  an  occurrence  extraneous  to  the 
workman, — involving  something  unusual, 
unexpected,  and  undesigned,  to  which  the 
injury  or  death  can  he  unequivocally — or 
at  least  by  a  reasonably  inferred  train  of 
causation  in  fact — attributed;  and  also 
probably,  as  a  corollary,  that  death  from 
disease — apart  from  the  industrial  diseases 
specially  mentioned  in  the  act  of  1906  and 
subsequent  statutory  rules  and  orders — is 
not  an  'accident'  imless  the  disease  which 
caused  death  can  be  definitely  collocated  in 
the  relation  of  effect  to  cause  with  some 
unusual,  unexpected,  and  undesigned  event 
arising  at  an  ascertained  time  out  of  the 
employment." 

The  county  court  judge  is  not  justified 
in  finding  that  there  was  an  accident,  where 
a  barber's  assistant  claimed  that  his  hand 
began  to  smart  on  January  17th,  and  upon 
consulting  a  doctor  on  February  15th  he 
was  found  to  be  suffering  from  dermatitis. 
Petschett  v.  Preis  (1915)  31  Times  L.  R. 
(Eng.)  156.  While  dermatitis  is  a  schedule 
disease,  the  applicant  did  not  proceed  under 
§  8,  but  under  §  1,  on  the  assumption  that 
he  had  suffered  an  accident  at  the  time 
when  he  first  began  to  feel  his  hand  smart. 
To  succeed  under  §  1,  there  must  be  a  find- 
ing that  there  had  been  an  accident,  which 
involved  that  something  had  happened  at 
the  definite  time  and  place. 

»6Euman  v.  Dalziel  [1913]  S.  C.  246,  50 
Scot.  L.  TR.  143.  H913]  W.  C.  &  Ins.  Rep. 
49,  6  B.  W.  C.  C.  900  (peritonitis  supervened 
L.R.A.1916A. 


after  accident) ;  Alloa  Coal  Co.  v.  Drylie, 
(Scot.)  supra  (a  case  of  death  from  pneu- 
monia following  a  chill  after  workman  had 
been  forced  to  stand  in  water  for  some 
time.) 

These  cases  overruled  in  effect  Perry  v. 
Baker  (1901;  C.  C.)  3  W.  C.  C.  (Eng.)  29, 
in  which  the  county  court  judge  drew  the 
inference,  from  a  number  of  decisions  of 
the  court  of  appeal,  that  an  accident  within 
the  meaning  of  the  act  must  be  the  result 
of  some  extraneous  circumstance. 

17  Lord  Robertson,  in   Fenton  v.  Thorley 
[1903]  A.  C.  (Eng.)  443,  72  L.  J.  K.  B.  N.  S. 
787,  52  Week.  Rep.  81,  89  L.  T.  N.  S.  314, 
19  Times  L.  R.  684. 

18  Trim    Joint    District    School    v.    Kelly 
[1914]  A.  C.  (Eng.)  667,  83  L.  J.  P.  C.  N.  S. 
220,  111  L.  T.  N.  S.  306,  30  Times  L.  R. 
452,    (1914)   W.  N.  177,  58   Sol.  Jo.  493,  7 
B.  W.  C.  C.  274,  [1914]  W.  C.  &  Ins.  Rep. 
359,  48  Ir.  Law  Times,  141. 

19  A  nervous  shock  caused  by  a  fatal  in- 
jury to  a  fellow  workman  is  an  "accident." 
Yates  v.  South  Kirkby,  F.  &  H.  Collieries 
[1910]   2  K.  B.   (Eng.)   538,  79  L.  J.  K.  B. 
N.  S.  1035,  103  L.  T.  N.  S.  170,  26  Times 
L.  R.  596,  3  B.  W.  C.  C.  418,  3  N.  C.  C.  A. 
225. 

20  Leaf  v.  Furze  (Div.  Ct.)  [1914]  3  K.  B. 
(Eng.)  1068,  83  L.  J.  K.  B.  N.  S.  1822. 

21  Harwood  v.  Wyken  Colliery  Co.  [1913] 
2  K.  B.  (Eng.)  158,  82  L.  J.  K.  B.  N.  S.  414, 
108  L.  T.  N.  S.  283,  29  Times  L.  R.  290,  57 
Sol.  Jo.  300,  [1913]  W.  C.  &  Ins.  Rep.  317, 
[1913]  W.  N.  53,  6  B.  W.  C.  C.  225. 

22McNally  v.  Furness  [1913]  3  K.  B. 
(Eng.)  605,  82  L.  J.  K.  B.  N.  S.  1310,  109 
L.  T.  N.  S.  270,  29  Times  L.  R.  678,  [1913] 
W.  N.  239,  6  B.  W.  C.  C.  664,  [1913]  W.  C. 
£  Ins.  Rep.  717. 

A  different  result  has  been  reached  in 
an  earlier  case  in  the  county  court.  Clay- 
ton v.  Dobbs  (1908)  2  B.  W.  C.  C.  (Eng.) 
488. 

23  In  Warner  v.  Couchman  [1912]  A.  C. 
(Eng.)  35,  5  B.  W.  C.  C.  177.  Lord  Lore- 
burn,  L.  C.,  said:  "I  will  only  say  this 
further:  To  be  perfectly  strict  and  ac- 
curate, it  is  somewhat  lax  to  speak  of  this 
statute  as  though  it  referred  to  an  accident. 
I  am  perfectly  conscious  that  I  myself,  as 
well  as  others,  have  fallen  into  that  lapsus 
linguae;  but  at  times  it  may  be  apt  to  con- 


32 


WORKMEN'S  COMPENSATION. 


compensation  to  be  awarded  is  not 
measured  by  the  degree  of  the  injury, 
but  rather  by  the  degree  of  the  inca- 
pacity which  is  caused  by  the  injury.24 

An  examination  of  the  cases  cited  be- 
low will  show  that  it  is  difficult,  if  not 
impossible,  to  reconcile  all  of  the  cases 
on  this  very  important  question  of  what 
constitutes  an  accident. 

A  strain  resulting  from  overexertion 
in  attempting  to  perform  some  unusual- 


ly heavy  duty  is  now,  by  the  majority 
of  the  cases,  considered  to  be  an  acci- 
dent.26 A  different  view  taken  in  some 
of  the  earlier  cases  must  be  considered 
as  overruled.26  An  accident  will  not  be 
inferred,  however,  where  the  disease  or 
injury  from  which  the  workman  suffered 
may  or  may  not  have  been  caused  by 
strain,  if  there  is  no  evidence  of  any 
overexertion.27 

If  the  primary  cause  of  the  workman's 


fuse  one's  idea  of  what  is  enacted  in  this 
particular  act  of  Parliament.  The  act  of 
Parliament  does  not  speak  of  an  accident, 
— it  speaks  of  'injury  by  accident  arising 
out  of  and  in  the  course  of  the  employ- 
ment.' " 

24  Jones  v.  Anderson  [1914]  84  L.  J.  P.  C. 
N.  S.   (Eng.)    47,  112  L.  T.  N.  S.  225,  31 
Times  L.  R.  76,  [1914]  W.  N.  432,  59  Sol. 
Jo.  159,   [1915]   W.  C.   &  Ins.  Rep.  151,  8 
B.  W.  C.  C.  2. 

25  "If  a  workman  in  the  reasonable  per- 
formance of  his  duties  sustains  a  physiolog- 
ical injury  as  the  result  of  the  work  he  is 
engaged  in,  I  consider  that  this  is  accidental 
injury  in  the  sense  of  the  statute."    Stewart 
v.  Wilsons  &  C.  Coal  Co.  (1902)  5  Sc.  Sess. 
Cas.  5th  series    (Scot.)    120,  per  Lord  Mc- 
Laren.    In   this   case   a   workman   strained 
his  back  in  replacing  a  derailed  coal  hutch 
on  the  rails. 

These  words  were  also  quoted  with  ap- 
proval by  Lord  Ashbourne  in  Ismay  v.  Wil- 
liamson [1908]  A.  C.  (Eng.)  437,  77  L.  J. 
P.  C.  N.  S.  107,  99  L.  T.  N.  S.  595,  24  Times 
L.  R.  881,  52  Sol.  Jo.  713,  42  Ir.  Law  Times, 
213,  1  B.  W.  C.  C.  232  (stoker  suffered  heat 
stroke). 

A  rupture  caused  by  overexertion  in  at- 
tempting to  turn  the  wheel  of  a  machine 
is  an  "accident"  within  the  meaning  of  the 
act.  Fenton  v.  Thorley  [1903]  A.  C.  (Eng.) 
443,  72  L.  J.  K.  B.  N.  S.  787,  52  Week.  Rep. 
81,  89  L.  T.  N.  S.  314,  19  Times  L.  R.  684, 
5  W.  C.  C.  1.  Lord  Macnaghten  said:  "If 
a  man,  in  lifting  e,  weight  or  trying  to  move 
something  not  easily  moved,  were  to  strain 
a  muscle,  or  rick  his  back,  or  rupture  him- 
self, the  mishap,  in  ordinary  parlance,  would 
be  described  as  an  accident.  Anybody  would 
say  that  the  man  had  met  with  an  accident 
in  lifting  a  weight,  or  trying  to  move  some- 
thing too  heavy  for  him." 

A  rupture  caused  by  the  effort  of  separat- 
ing a  plank  from  one  to  which  it  was  stuck 
by  ice  formed  during  the  preceding  night 
may  properly  be  found  to  have  been  caused 
by  an  "accident."  Timmins  v.  Leeds  Forge 
Co.  (1900)  16  Times  L.  R.  (Eng.)  521,  83 
L.  T.  N.  S.  120. 

A  workman  in  normal  health  was  engaged 
in  the  course  of  his  duty  in  removing  a 
beam  from  a  loom.  He  was  in  the  act  of 
lifting  the  beam  on  to  his  shoulder,  when, 
finding  that  it  was  not  evenly  balanced, 
he  gave  it  an  extra  lift,  or  hitch  up,  and 
in  so  doing  ruptured  several  fibers  of  the 
muscles  of  his  back,  which  incapacitated 
him  for  work.  Held,  that  he  had  sustained 
L.R.A.19J6A. 


personal  injury  by  "accident."   Boardman  v. 
Scott  [1902]  1  K.  B.  (Eng.)  43,  71  L.  J.  K. 

B.  N.  S.  3,  66  J.  P.  260,  50  Week.  Rep.  184. 
A  workman  who,  while  engaged  in  mow- 
ing  around  a   field,   stooped   to   straighten 
up    some    grain    which    had    been    trodden 
down,     and     "rung"    his     leg,    which    tore 
muscles    and    ruptured    fibers    from    which 
traumatic    phlebitis    eventually    developed, 
suffered  injury  by  accident.     Purse  v.  Hay- 
ward    (1908;    C.   C.)    125   L.   T.  Jo.    (Eng.) 
10,  1  B.  W.  C.  C.  216. 

26  Internal  injuries  resulting  from  an  un- 
usual strain  in  lifting  heavier  articles  than 
those   which    the   employee   had   previously 
been  handling  was  held  not  to  arise  from  "ac- 
cident."    Roper  v.  Greenwood   [1901]   83  L. 
T.  N.  S.   (Eng.)   471.     The  doctrine  of  the 
court  in  this  case  is  strikingly  similar   to 
the    old    doctrine    of    assumption    of    risk. 
Smith,  M.  R.,  in  sustaining  the  finding  of 
the  county  court  judge,  said:      "The  facts 
of  this  case  are  that  the  plaintiff  was  em- 
ployed as  a  box  maker,  and  upon  this  oc- 
casion   the   boxes   upon   which   she   had   to 
work    were    of    a    larger    size    than    usual; 
everyone    knew    that    they    were    so.      She 
began    to    work    upon    these   boxes    in    the 
morning;    she    found    them    somewhat    too 
heavy  for  her;  she  did  not  give  up,  but  went 
on  with  the  work.     There  was  nothing  for- 
tuitous or  unforeseen  as  she  went  on  from 
one  box  to  another.    When  she  came  to  the 
seventh  box   it  was  just   the  same  as  the 
others  were  before  it,  and  there  was  noth- 
ing fortuitous  or  unforeseen.     She  strained 
herself    and    was    injured.      She    says    that 
the  employers  are  liable  to  pay  her  com- 
pensation because  the  injury  was  caused  by 
accident.      Upon    those    facts    the    county 
court    judge    came    to    the    conclusion    that 
there   was   no   accident   at   all;    that   there 
was  nothing  fortuitous  or  unforeseen." 

Injury  from  a  strain  caused  by  lifting 
a  bench  was  held  not  to  arise  from  acci- 
dent. Perry  v.  Baker  (1901;  C.  C.)  3  W. 

C.  C.    (Eng.)    29.     The  county  court  judge 
said  that  this  was  a  narrowed  construction 
of  the  act,  but  that  he  felt  himself  bound 
by  Hensey  v.  White  (Eng.)  cited  in  note  10, 
supra. 

27  A   stroke   of   apoplexy   which    may   or 
may  not  have  been  brought  on  by  a  strain 
or   overexertion    is   not   an    injury   suffered 
by  "accident,"   where   there  is  no   evidence 
that   the   work   subjected   the   workman   to        t 
any   serious   strain.     Barnabas  v.   Bersham 
Colliery  Co.   (1910)   103  L.  T.  N.  S.   (Eng.) 
513,  55   Sol.  Jo.  63.     The  House  of  Lords 


INJURY  BY  ACCIDENT. 


incapacity  is  disease,  or  the  impaired 
physical  condition  at  a  time  when  he  is 
doing  his  ordinary  work  in  the  ordinary 
way,  it  cannot  be  said  to  have  been 
caused  by  accident.28  And  this  is  the 
rule  although  the  work  is  too  hard  for 


the  plaintiff,  provided  that  he  is  not  in- 
jured by  any  sudden  strain.29 

On  the  other  hand,  death  or  injury 
may  be  found  to  be  the  result  of  an 
accident,  although  the  workman's  im- 
paired physical  condition  at  the  time 


took  the  view  that  the  onus  of  proof  had 
not  been  discharged. 

Where  a  workman  apparently  in  ordi- 
narily good  health,  suddenly  dropped  dead 
from  heart  disease  while  he  was  lifting 
baskets  filled  with  corn,  and  the  arbitrator 
found  that  there  was  no  unusual  or  unex- 
pected strain  in  the  course  of  his  work  im- 
mediately preceding  his  death,  there  is  no 
evidence  upon  which  the  arbitrator  may 
find  that  his  death  was  due  to  accident. 
Kerr  v.  Ritchies  (1913)  50  Scot.  L.  R.  434, 
[1913]  S.  C.  613,  6  B.  W.  C.  C.  419. 

Where  symptoms  of  heart  failure  which 
came  on  suddenly  niight  have  come  from  a 
sudden  strain,  or  might  have  come  simply 
from  the  progress  of  the  disease,  the  county 
court  judge  is  not  justified  in  finding  that 
there  was  an  "accident."  Beaumont  v. 
Underground  Electric  R.  Co.  [1912]  W.  C. 
Rep.  (Eng.)  123,  5  B.  W.  C.  C.  247. 

28  Hensey  v.  White  [1900]  1  Q.  B.  (Eng.) 
481.  48  Week.  Rep.  257,  69  L.  J.  Q.  B.  N.  S. 
188,  63  J.  P.  804,  81  L.  T.  N.  S.  767,  16 
Times  L.  R.  64,  denying  the  right  of  re- 
covery in  a  case  where  a  workman  who 
was  inherently  weak  internally  ruptured  a 
blood  vessel  when  making  an  effort  to  start 
the  wheel  of  a  gas  engine,  which  had  be- 
come stiff  from  disuse. 

A  death  cannot  be  attributed  to  "ac- 
cident" where  the  deceased  had  suffered 
from  progressive  heart  disease  for  some 
years,  and  was  liable  to  die  at  any  moment, 
and  death  came  while  he  was  doing  his 
normal  work.  O'Hara  v.  Hayes  (1910)  41 
Ir.  Law  Times,  71,  3  B.  W.  C.  C.  586. 

No  compensation  can  be  awarded  where 
the  medical  evidence  was  to  the  effect  that 
the  incapacity  of  the  complainant  was  not 
due  to  the  accident,  but  to  an  eczematous 
condition  not  caused  by  the  accident. 
Swinbank  v.  Bell  Bros.  (1911)  5  B.  W.  C. 
C.  (Eng.)  48. 

Death  from  erysipelas  of  the  face,  nearly 
three  months  after  an  injury  to  the  hand, 
which  had  healed,  cannot  be  said  to  be  by 
"accident."  Hugo  v.  Larkins  (1910)  3  B.  W. 
C.  C.  (Eng.)  228. 

Where  a  workman  died  of  heart  disease, 
and  the  arbitrator  finds  that  the*  man  was 
working  in  the  usual  routine  of  business 
not  strenuous,  and  that  nothing  unusual 
had  occurred  on  the  occasion,  it  is  error 
for  him  to  further  find  that  the  workman 
had  met  with  an  accident.  Kerr  v.  Ritchies 
[1913]  S.  C.  613,  50  Scot.  L.  R.  434,  [1913] 
W.  C.  &  Ins.  Rep.  297,  6  B.  W.  C.  C.  419. 

Where  a  man's  arteries  were  in  a  diseased 
condition  of  long  standing,  and  he  was  at- 
tacked, while  working,  by  angina  pectoris, 
and  died  on  the  evening  of  the  same  day, 
there  is  no  evidence  to  sustain  a  finding  that 
he  died  from  accident,  it  being  shown  that 
his  work  was  not  heavy  and  required  no 
L.R.A.1916A.  ! 


straining,  and  that  the  disease  may  be 
brought  on  by  a  variety  of  causes,  and  does 
not  always  come  on  immediately  after  the 
exertion  is  made.  Hawkins  v.  Powells 
Tillery  Steam  Coal  Co.  [1911]  1  K.  B. 
(Eng.)  988,  80  L.  J.  K.  B.  N.  S.  769,  104 
L.  T.  N.  S.  365,  27  Times  L.  R.  282,  55  Sol. 
Jo.  329,  4  B.  W.  C.  C.  178. 

A  workman  employed  to  make  a  steam 
pipe  joint,  who  suffers  injury  through  the 
red  lead  coming  in  contact  with  a  finger 
which  had  previously  been  in  a  blistered 
condition,  does  not  suffer  injury  by  "ac- 
cident." Walker  v.  Lilleshall  Coal  Co. 
[1900]  1  Q.  B.  (Eng.)  488,  81  L.  T.  N.  S. 
769,  69  L.  J.  Q.  B.  N.  S.  192,  64  J.  P.  85,  48 
Week.  Rep.  257,  16  Times  L.  R.  108.  But 
see  Dotzauer  v.  Strand  Palace  Hotel  (Eng.) 
note  31  infra. 

An  "accident"  was  not  proved  where  the 
evidence  showed  that  the  applicant  was  a 
man  who  was  suffering  from  an  advanced 
disease  in  the  mitral  valve  of  the  heart 
and  from  enlargement  of  the  heart,  and  it 
was  found  in  fact  that  this  condition  was 
not  due  to  the  alleged  accident,  but  was 
of  long  standing,  though  possibly  the  man 
may  not  have  been  aware  of  the  disease, 
that  it  was  in  its  nature  progressive,  and 
was  bound  to  manifest  itself  sooner  or  later, 
and  would  have  done  so  probably  in  the 
way  in  which  it  did,  and  might  have  done 
so  even  when  he  was  not  engaged  in  active 
exercise.  Spence  v.  Baird  [1912]  S.  C.  343, 
49  Scot.  L.  R.  278,  5  B.  W.  C.  C.  542,  [1912] 
W.  C.  Rep.  18. 

A  miner  cannot  be  said  to  have  suffered 
injury  by  accident  where  he  was  employed 
in  the  mine  but  three  days,  and  the  work 
which  he  had  been  doing  was  of  a  very 
light  nature,  not  requiring  any  great  exer- 
tion or  strain,  and  on  each  of  the  first  two 
days  he  had  complained  of  illness,  and  upon 
the  third  day  and  after  a  few  hours  suffered 
an  attack  of  cerebral  hemorrhage  after  do- 
ing but  very  little  work,  and  appearing  to 
be  ill  at  ease  all  of  the  time.  Federal  Gold 
Mine  v.  Ennor  (1910;  H.  C.  of  A.)  13  C.  L. 
R.  (Austr.)  276. 

29  Where  the  cause  of  a  miner's  incapacity 
was  cardiac  breakdown,  due  to  the  fact 
that  the  work  in  which  he  had  for  some 
days  been  engaged  was  too  heavy  for  him, 
the  repeated  excessive  exertion  having 
strained  his-  heart  unduly,  and  he  was  not 
injured  by  any  sudden  jerk,  it  may  be 
found  that  the  injury  was  not  an  "injury 
by  accident"  within  the  meaning  of  the  act. 
Coe  v.  Fife  Coal  Co.  [1909]  S.  C.  393,  46 
Scot.  L.  R.  328.  Lord  Kinnear  said  it  was 
not  an  accident,  as  it  was  the  ordinary  and 
necessary  consequence  of  continuous  work 
lasting  over  a  considerable  time. 

And  see  the  cases  cited  in  note  39,  infra. 


34 


WORKMEN'S  COMPENSATION. 


may  have  rendered  him  more  susceptible 
to  the  injury  than  a  normally  healthy 
man.  It  is  only  where  the  injury  or 
death  is  caused  solely  by  the  previous 


condition  of  the  workman  that  compen- 
sation is  denied.80  So,  too,  compensation 
may  be  recovered  although  the  conse- 
quences of  the  injury  may  have  been 


30  The  fact  that  a  man  who  has  died 
from  a  heat  stroke  was  by  physical  de- 
bility more  likely  than  others  so  to  suffer 
can  have  nothing  to  do  with  the  question 
whether  what  befell  him  is  to  be  regarded 
as  an  accident  or  not.  Ismay  v.  Williamson 
[1908]  A.  C.  (Eng.)  437,  77  L.  J.  P.  C.  N.  S. 
107,  99  L.  T.  N.  S.  595,  24  Times  L.  R.  881, 
52  Sol.  Jo.  713. 

The  facts  in  the  case  of  Maskery  v.  Lan- 
cashire Shipping  Co.  (1914)  7  B.  W.  C.  C. 
(Eng.)  428,  are  very  similar  to  those  in 
Ismay  v.  Williamson  (Eng.),  and  the  case 
was  decided  upon  the  authority  of  the  lat- 
ter case. 

See  also  Colder  v.  Caledonian  R.  Co. 
(1902)  5  Sc.  Sess.  Cas.  5th  series  (Scot.) 
123  (workman  affected  by  nephritis;  acci- 
dent lowered  his  vitality  and  accelerated 
death). 

Where  a  workman  dies  from  the  rupture 
of  an  aneurism,  and  "the  death  is  caused 
by  a  strain  arising  out  of  the  ordinary 
work  of  the  deceased  operating  upon  a 
condition  of  body  which  was  such  as  to 
render  the  strain  fatal,"  he  suffers  an  in- 
jury by  "accident"  within  the  meaning  of 
the  act.  Hughes  v.  Clover  [1909]  2  K.  B. 
(Eng.)  798,  78  L.  J.  K.  B.  N.  S.  1057,  101 
L.  T.  N.  S.  475,  25  Times  L.  R.  760,  53  Sol. 
Jo.  763,  affirmed  in  [1910]  A.  C.  (Eng.) 
242,  79  L.  J.  K.  B.  N.  S.  470,  102  L.  T.  N. 
S.  340,  26  Times  L.  R.  359,  54  Sol.  Jo.  375, 
3  B.  W.  C.  C.  275,  47  Scot.  L.  R.  885.  Lord 
Macnaghten  thus  concisely  passed  upon 
this  question:  "The  man  ruptured  an 
aneurism  in  his  aorta.  An  aneurism,  as  1 
understand  it,  is  an  unnatural  or  abnormal 
dilatation  of  an  artery;  but  still  it  is  a 
part  of  the  artery,  and  so  a  part  of  the 
man's  body.  The  man  'broke  part  of  his 
body,'  to  borrow  Lord  Robertson's  expres 
sion  in  Brintons  v.  Turvey  [1905]  A.  C 
(Eng.)  230,  74  L.  J.  K.  B.  N.  S.  474,  5J 
Week.  Rep.  641,  92  L.  T.  N.  S.  578,  21 
Times  L.  R.  444,  2  Ann.  Cas.  137,  and  he 
certainly  did  not  mean  to  do  it." 

To  the  same  effect,  McArdle  v.  Swansea 
Harbour  Trust  (1915)  8  B.  W.  C.  C.  (Eng.) 
489,  in  which  the  facts  were  very  similar 
and  which  was  decided  upon  the  authority 
of  Hughes  v.  Clover. 

Hughes  v.  Clover  (Eng.)  was  followed  ir 
Groves  v.  Burroughes  (1911)  4  B.  W.  C.  C 
(Eng.)  185,  where  a  workman  returned  t< 
work  before  a  wound  had  healed,  and  i 
burst  while  he  was  performing  his  ordinary 
work;  and  in  Trodden  v.  McLennard  (1911 
4  B.  W.  C.  C.  (Eng.)  190,  where  a  workmar 
descending  the  side  of  a  ship  on  a  ladde 
was  heard  to  give  a  cry  as  he  fell  intc 
the  water,  and  it  was  shown  that  the  hear 
was  in  such  a  condition  that  any  sligh 
exertion  might  have  caused  failure. 

A  stroke  of  apoplexy,  resulting  in  th 
death  of  a  gateman,  which  was  brough 
on  by  his  running  from  his  place  of  wort 
L.R.A.1916A. 


o  the  scene  of  an  accident,  about  100 
rards  distant,  and  back  again  to  give  notice 
if  the  accident,  is  itself  an  accident  within; 
he  meaning  of  the  statute.  Aitken  v. 
'inlayson  [1914]  S.  C.  770,  [1914]  2  Scot. 
j.  T.  27,  51  Scot.  L.  R.  653,  7  B.  W.  C.  C. 

A  cerebral  hemorrhage  caused  by  exertion 
s  an  injury  caused  by  accident  although 
at  the  time  of  the  first  attack  the  arteries- 
were  in  a  degenerate  condition,  which  ren- 
dered such  an  attack  more  likely  to  occur. 
M'Innes  v.  Dunsmuir  [1908]  S.  C.  (Scot.) 
1021. 

The  county  court  judge  may  draw  the 
nference  that  an  injury  was  caused  by  an 
accident,  where  it  appears  that  a  fireman 
who  had  been  engaged  in  raking  out  the 
fires  in  a  stoke  hole  suffered  an  apoplectie 
stroke,  although  the  medical  evidence  was 
to  the  effect  that  the  man's  arteries  were 
in  a  diseased  condition.  Broforst  v.  The 
Blomfield  (1913)  6  B.  W.  C.  C.  (Eng.)  613. 
A  workman  employed  to  load  heavy  sacks 
on  to  a  truck  and  then  push  the  truck  along 
rails  shortly  afterwards,  who  while  resting- 
fell  senseless  and  died,  may  be  held  to  have 
met  with  an  accident,  where  the  medical 
evidence  proved  that  the  heart  would  not 
have  failed  had  it  not  been  subjected  to 
more  than  ordinary  strain.  Doughton  v. 
Hickman  [1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
143,  6  B.  W.  C.  C.  77. 

It  may  be  found  that  the  death  of  an> 
engine  driver  resulted  from  injury  by  ac- 
cident, where  he  was  last  seen  alive  at 
work  upon  his  engine,  and  was  subsequently 
found  by  the  side  of  the  engine  with  his 
legs  doubled  up,  and  died  shortly  there- 
after, notwithstanding  he  had,  on  at  least 
three  previous  occasions,  collapsed  in  a 
faint  and  lain  unconscious  for  some  minutes, 
when  upon  the  medical  evidence  it  appeared" 
that  he  had  a  sound  heart,  and  a  few  days 
before  the  occurrence  he  was  examined  by 
the  physician  of  the  company,  and  was 
presumably  passed  as  physically  fit  for  his 
position.  Fennah  v.  Midland  G.  W.  R.  Co. 
(1911)  45  Ir.  Law  Times,  192,  4  B.  W.  C. 
C.  440. 

Where  a  workman  unloading  coal  from 
a  ship  is  seized  with  an  epileptic  fit  and 
falls  down  the  hatchway  into  the  hold,  it. 
is  an  accident.  Wicks  v.  Dowell  [1905] 
2  K.  B.  (Eng.)  225,  74  L.  J.  K.  B.  N.  S.. 
572,  53  Week.  Rep.  515,  92  L.  T.  N.  S.  677, 
21  Times  L.  R.  487,  2  Ann.  Cas.  732. 

In  Warnock  v.  Glasgow  Iron  &  Steel' 
Co.  (1904)  6  Sc.  Sess.  Cas.  5th  Series  (Scot.) 
474,  it  was  held  to  be  a  question  of  fact 
for  the  jury  whether  the  death  of  a  miner 
seventy-nine  years  old,  who  died  after  hav- 
ing been  injured  by  the  fall  of  a  stone 
from  the  roof  of  a  pit  was  caused  by  the 
injury  or  by  apoplexy. 

A  workman  engaged  in  a  lighter  in  coal- 
ing a  ship,  who  upon  a  sudden  rush  of  coat 


INJURY  BY  ACCIDENT. 


35- 


aggravated  by  the  workman's  physical 
condition.31  And  it  has  been  said  that 
where  the  progress  and  intensity  of  the 
disease  was  aggravated  by  an  accident, 
compensation  will  be  allowed.32 

Where  the  injury  is  the  gradual  result 
of  doing  a  particular  kind  of  work,  so  j 
that  it  would  be  impossible  to  refer  the 
happening  of  the  injury  to  any  partic- ! 


ular  day,  and  it  is  what  might  naturally 
be  expected  if  work  of  that  character  is 
pursued,  it  is  not  an  "accident."  In 
cases  in  which  this  principle  is  appli- 
cable, the  injury  may  be  in  the  nature 
of  some  acute  disease,  caused  by  inhaling- 
poisonous  matter,33  or  of  some  skin  dis- 
ease caused  by  the  hands  coming  in  di- 
rect contact  with  poisonous  substances,34 


was  struck  in  the  stomach,  either  by  the 
coal  or  by  a  basket  which  he  held  against 
his  body,  and  who,  after  being  operated 
upon  at  the  hospital,  died  from  peritonitis 
caused  by  a  perforation  of  the  bowel,  may 
be  held  to  have  died  from  the  accident,  al- 
though he  was  suffering  from  a  weakened 
and  disordered  bowel  condition  due  to 
chronic  appendicitis,  which  rendered  him 
more  likely  to  be  injured  by  a  blow  than 
though  he  had  been  in  a  healthy  condition. 
Woods  v.  Wilson  (1915)  84  L.  J.  K.  B.  N. 
S.  (Eng.)  1067,  31  Times  L.  R.  273,  [1915] 
W.  N.  109,  59  Sol.  Jo.  348,  8  B.  W.  C.  C. 
288. 

31  Where  a  workman  in  handling  a  ham- 
mer makes  a  mis-hit  and  strikes  a  "flatter" 
held  by  another  workman,  thus  jarring  his 
arm  and  producing  a  severe  swelling,  there 
is  an  "accident,"  although  the  swollen  con- 
dition is  declared  by  a  doctor  to  have  been 
due  to  gout  brought  on  by  the  jar.  Lloyd 
v.  Sugg  [1900]  1  Q.  B.  (Eng.)  486,  69  L.  J. 
Q.  B.  N.  S.  190,  81  L.  T.  N.  S.  768,  16 
Times  L.  R.  65. 

A  man  who,  suffering  from  a  disease  of 
the  skin,  incurs  injury  by  putting  his  hands 
into  water  with  soda  and  soft  soap  in  it, 
is  injured  by  accident.  Dotzauer  v.  Strand 
Palace  Hotel  (1910)  3  B.  W.  C.  C.  (Eng.) 
387.  Cozens-Hardy,  M.  R.,  observed:  "The 
mere  circumstance  that  a  particular  man, 
in  doing  work  arising  out  of  and  in  the 
course  of  his  employment,  meets  with  an 
accident  which  a  perfectly  healthy  man 
would  not  have  met  with,  is  no  answer  at 
all."  But  see  Walker  v.  Lilleshall  Coal  Co. 
(Eng.)  note  28,  supra. 

A  brewer's  assistant  who  felt  a  severe 
strain  in  his  side,  when,  in  the  course  of  his 
employment,  he  was  lifting  a  cask  weigh- 
ing about  50  pounds,  attached  to  a  pipe, 
from  a  shelf  5£  feet  from  the  ground,  which 
pain  was  caused  by  a  rupture,  suffered  an 
accident  arising  out  of  and  in  the  Bourse 
of  his  employment,  although  the  rupture 
was  in  the  same  place  as  one  from  which 
he  had  suffered  twenty-two  years  before, 
where  it  appeared  that  the  early  rupture 
was  entirely  cured,  and  that  he  had  not 
worn  a  truss  for  upwards  of  six  years, 
during  which  time  he  had  done  his  work 
as  an  ordinary  man  would  have  done. 
Brown  v.  Kemp  (1913)  6  B.  W.  C.  C.  (Eng.) 
725. 

Where  a  workman  engaged  in  digging 
out  lumps  of  chalk  from  a  chalk  quarry, 
who  was  suffering  from  a  slight  hernia  at 
the  time  he  entered  the  service  of  his  em- 
ployer six  months  previously,  strained  him- 
self in  attempting  to  get  out  a  piece  larger 
L.R.A.1916A. 


than  usual,  but  not  larger  than  some  others 
which  had  been  gotten  out  successfully, 
which  strain  aggravated  the  existing  hernia 
and  wholly  incapacitated  him,  the  injury 
received  from  the  strain,  although  if  re- 
garded solely  from  a  medical  aspect  could' 
not  be  an  untoward  event  not  expected,  yet 
from  the  standpoint  of  a  workman  not 
learned  in  medicine  or  surgery  could  be 
regarded  only  as  occasioned  by  a  mishap 
or  untoward  event  not  expected  or  designed. 
Fulford  v.  Northfleet  Coal  &  Ballast  Co. 
(1907;  C.  C.)  1  B.  W.  C.  C.  (Eng.)  222. 

32Willoughby  v.  Great  Western  R.  Co. 
(1904;  C.  C.)  117  L.  T.  Jo.  (Eng.)  132,  6 
W.  C.  C.  28. 

33  Steel  v.  Cammell  [1905]  2  K.  B.  (Eng.) 
232,  74   L.  J.  K.  B.  N.   S.  610,  53  Week. 
Rep.    612,   93    L.    T.   NT.    S.   357,   21    Times 
L.  R.  490,  2  Ann.  Gas.  142    (gradual  lead- 
poisoning  contracted  by  a  ship-caulker). 

Typhoid  fever  contracted  while  handling 
sewage  is  not  an  accident  within  the  mean- 
ing of  the  compensation  act,  where  it  is- 
not  possible  to  indicate  the  time  and  place 
when  the  disease  was  contracted.  Finlay 
v.  Tullamore  Union  (1914)  48  Ir.  Law- 
Times,  110,  7  B.  W.  C.  C.  973. 

Enteritis  contracted  by  inhaling  sewer 
gas  while  working  in  a  sewer  is  not  an 
•'injury  by  accident."  Broderick  v.  London 
County  Council  [1908]  2  K.  B.  (Eng.)  807, 
77  L.  J.  K.  B.  N.  S.  1127,  99  L.  T.  N.  S, 
569,  24  Times  L.  R.  822,  15  Ann.  Cas.  885, 
But  see  discussion  in  connection  with  the 
so-called  anthrax  case,  in  notes  48  et  seq.,. 
infra. 

Except  in  the  case  of  the  industrial  or 
scheduled  diseases,  unless  the  applicant  cani 
indicate  the  time,  the  day,  and  circumstance,, 
and  place,  in  which  the  accident  has  oc- 
curred by  means  of  some  definite  event,  the- 
case  cannot  be  brought  within  the  general 
purview  of  the  act,  and  does  not  entitle 
the  workman  or  his  dependents  to  compen- 
sation. Eke  v.  Hart-Dyke  [1910]  2  K.  B. 
(Eng.)  677,  80  L.  J.  K.  B.  N.  S.  90,  103  L. 
T.  N.  S.  174,  26  Times  L.  R.  613,  3  N.  C. 
C.  A.  230,  3  B.  W.  C.  C.  482  (death  resulted 
from  ptomain  poisoning  contracted  by  in- 
haling sewer  gas  while  working  around  cess 
pools). 

An  attack  of  colic  set  up  by  lead  poison- 
ing is  not  an  injury  by  accident.  Williams 
v.  Duncan  (1898;  C.  C.)  1  W.  C.  C.  (Eng.) 
123. 

34  Eczematous    sores    on    the    workman's 
hand,    caused    gradually    by    working    over 
carbon  bisulphide  are  not  caused  by  acci- 
dent.    Evans  v.  Dodd    [1912]    W.  C.  Rep.. 
(Eng.)  149,  5  B.  W.  C.  C.  305. 


36 


WORKMEN'S  COMPENSATION. 


or  in  the  form  of  abscesses  caused  by 
some  portion  of  the  body  coming  in  con- 
tact with  hard  substances.85  Again,  the 
injury  may  be  in  the  nature  of  a  general 
breakdown,  due  to  overwork.86  Waste 
overrunning  repair,  says  Fletcher  Moul- 
ton,  L.  J.,  is  not  an  accident.37 

A  hospital  nurse  or  a  hospital  attend- 
ant who  contracted  a  disease  while  at 
work  in  the  hospital  cannot  say  that  he 
has  suffered  injury  by  accident  which 
entitles  him  to  compensation.38 


On  the  other  hand,  where  a  disease 
is  contracted  as  the  direct  result  of  un- 
usual circumstances  connected  with  the 
work,  and  is  not  the  ordinary  result  of 
pursuing  the  work,  it  is  to  be  considered 
as  caused  by  accident.39  A  disease  which 
is  the  consequence  of  an  accident  is 
within  $  1  of  the  act,  although  not  the 
natural  result,40  or  even  the  probable 
result.41  Thus,  a  disease  which  follows 
a  wetting  received  in  the  course  of  the 
employment  is  an  injury  by  accident ;  42 


Dermatitis   incurred   in   washing  out   ink  i 
cans  with  a  strong  solution  of  caustic  soda 
is  not  an  accident.     Cheek  v.  Harmsworth 
Bros.    (1901;   C.  C.)    4  W.  C.  C.    (Eng.)    3. 

A  barber's  assistant  who  suffered  from 
dermatitis,  alleged  to  have  been  contracted 
from  the  use  of  a  dangerous  dry  shampoo, 
cannot  recover  compensation  where  he  pro- 
ceeds under  §  1,  claiming  to  have  suffered 
an  accident,  although  dermatitis  may  be 
a  schedule  disease,  and  he  might  have  re- 
covered had  he  proceeded  under  §  8. 
Petschett  v.  Preis  (1915)  31  Times  L.  R. 
(Eng.)  156,  [1915]  W.  C.  &  Ins.  Rep.  11, 
8  B.  W.  C.  C.  44. 

35  A    miner    is    not    injured    by    accident 
where  he  suffers  from  the  gradual  forma- 
tion of  abscesses,  one  in  the  hand  caused  by 
the  continual  use  of  the  pick,  the  other  in 
the  knee  caused  by  continual  kneeling  while 
at  work.     Marshall  v.  East  Holywell  Coal 
Co.    (1905)    93  L.  T.  N.   S.    (Eng.)    360,  21 
Times  L.  R.  494. 

36  That  a  workman  labored  very  hard  for 
several    days,   working    seventeen    hours    a 
day,    and   for   the   last    twenty-four    hours 
practically  continuously,  and  that  six  days 
afterwards  he  dropped  dead  from  heart  dis- 
ease, and  that  there  was  medical  evidence 
that  death  was  due  to  heart  failure  follow- 
ing  on   the   continual   strain   of   overwork, 
does  not  justify  a  finding  that  the  death 
was  due  to  accident.    Black  v.  New  Zealand 
Shipping   Co.    [1913]    W.    C.    &    Ins.    Rep. 
(Eng.)  480,  6  B.  W.  C.  C.  720. 

Partial  paralysis  progressively  brought  on 
by  the  continued  use  of  a  tricycle  is  not 
an  injury  by  accident.  Walker  v.  Hockney 
Bros.  (1909)  2  B.  W.  C.  C.  (Eng.)  20. 

The  arbitrator  is  justified  in  denying  com- 
pensation where  he  found  that  the  work- 
man's incapacity  was  due  to  continual 
strain  after  he  had  returned  to  work,  and 
not  to  a  previous  accident,  for  which  he 
had  received  compensation.  Paton  v.  Dixon 
[1913]  W.  C.  &  Ins.  Rep.  517,  50  Scot.  L.  R. 
866,  6  B.  W.  C.  C.  882,  [1913]  S.  C.  1120. 

See  also  Coe  v.  Fife  Coal  Co.  [1909]  S.  C. 
393,  46  Scot.  L.  R.  328,  cited  in  note  29, 
supra,  where  cardiac  breakdown  was  due  to 
continual  work  which  was  too  heavy  for 
the  workman. 

37  Walker  v.  Hockney  Bros.  (Eng.)  supra. 

38  Martin  v.  Manchester  Corp.  [1912]  W. 
C.  Rep.  (Eng.)  289,  106  L.  T.  N.  S.  741,  76 
J.  P.  251,  [1912]  W.  N.  105,  5  B.  W.  C.  C. 
259. 

39  A  workman  who  contracts  pneumonia 
L.R.A.1916A. 


from  the  inhalation  of  gas  generated  by 
an  explosion  suffers  from  "accident."  Kelly 
v.  Auchenlea  Coal  Co.  [1911]  S.  C.  864,  48 
Scot.  L.  R.  768,  4  B.  W.  C.  C.  417. 

Where  a  miner  was  employed  in  hew- 
ing coal,  and  while  so  employed  a  piece 
of  coal  worked  itself  into  his  knee,  with 
the  result  that  blood  poisoning  set  in  and 
caused  his  death,  there  was  an  injury  re- 
sulting from  an  "accident."  Thompson  v. 
Ashington  Coal  Co.  (1901)  84  L.  T.  N.  S. 
(Eng.)  412,  17  Times  L.  R.  345. 

«>Ystradowen  Colliery  Co.  v.  Griffiths 
[1909]  2  K.  B.  (Eng.)  533,  78  L.  J.  K.  B. 
N.  S.  1044,  100  L.  T.  N.  S.  869,  25  Times 
L.  R.  622  (workman  was  injured  on  the 
knee,  and  suffered  from  exposure  while 
slowly  making  his  way  home  in  his  injured 
condition). 

41  Dunham  v.  Clare  [1902]  2  K.  B.  (Eng.) 
292,  71  L.  J.  K.  B.  N.  S.  683,  86  L.  T.  N.  S. 
751,  18  Times  L.  R.  645,  50  Week.  Rep.  596, 
66    J.    P.    612     (erysipelas    supervened    in 
wound). 

42  The   arbiter   may   find   that   a   miner's 
death  was  due  to   "accident,"  where  there 
was  evidence  that  he  was  chilled,  or  con- 
tracted   a    chill,    after    being    required    to 
stand  in  water  icy  cold  up  to  his  knees  for 
about  twenty-five  minutes,  through  the  fail- 
ure of  the  lift  to  descend  in  response  to  the 
signals,  the  pumps  used  to  take  the  water 
out  of  the  pit  being  defective  and  stopped 
for     repairs.       Alloa     Coal     Co.    v.     Drylie 
[1913]  W.  C.  &  Ins.  Rep.  213,  6  B.  W.  C.  C. 
398    [1913]    S.   C.   549,  50  Scot.  L.   R.  350, 
[1913]    1   Scot.   L.   T.   167.     Lord   Salveson 
dissented  upon  the  ground  that  there  was 
no  case  where  a  death  from  a  disease  such 
as  pneumonia  had  been  held  to  be  a  death 
resulting  from  injury  by  accident,  because 
it  might  be,  with  more  or  less  probability, 
attributed  to  an  accidental  exposure  to  wet 
or  cold.     He  further  observed:     "The  pneu- 
monia  itself  did  not  develop   for  nearly   a 
week,   and    I    do    not    think    the    inference 
which   the   arbitrator  drew  was   warranted 
by  the  facts  he  has  stated ;   unless  indeed 
the  fact  that  a  man  has  caught  a  cold  dur- 
ing his  work  from  which  he  never  recovers 
until  pneumonia  supervenes  is  a  ground  for 
inferring  that  the  circumstances  which  pro- 
duced  the    cold    also    produced    the    super- 
vening pneumonia,  however  long  the  inter- 
val that  elapsed." 

A  pilot  who,  after  taking  a  ketch  out  of 
harbor,  jumped  into  his  boat  from  the  ketch, 
and  in  so  doing  upset  the  boat,  and  got 


INJURY  BY  ACCIDENT. 


37 


so  is  a  disease  which  follows  exposure 
to  a  draught.43  So  where  a  workman  has 
been  injured,  and  a  disease  intervenes, 
retarding  recovery  or  rendering  it  less 
complete,  the  increased  incapacity  is  re- 
ferrable  to  the  accident.44  In  a  Scotch 
case  it  was  held  that  pleurisy  following 
a  chill  after  a  workman  had  become  over- 
heated at  his  work  was  not  an  acci- 
dent.45 It  seems  impossible  to  reconcile 
this  case  with  those  immediately  pre- 
ceding.46 

As  to  when  death  results  from  an  in- 
jury so  as  to  entitle  dependents  to  re- 
cover compensation,  although  the  death 
is  not  the  probable  consequence  of  the 
injury,  see  cases  cited  post,  133. 

A  workman  suffered  injury  by  "acci- 
dent," where  bran  dust  containing  grit 

wet  up  to  the  thighs,  and  contracted 
sciatica,  was  injured  by  accident.  Barbeary 
v.  Chugg  (1915)  84  L.  J.  K.  B.  N.  S.  (Eng.) 
504,  112  L.  T.  N.  S.  797,  31  Times  L.  R. 
153,  [1914]  W.  C.  &  Ins.  Rep.  174,  8  B.  W. 
C.  C.  37.  The  master  of  the  rolls  said  that 
he  did  not  intend  to  lend  any  countenance 
to  an  idea  that  because  a  pilot  got  wet  in 
rough  weather  he  had  met  with  an  accident 
within  the  meaning  of  the  act,  but  that  in 
the  case  at  bar  there  was  sufficient  evi- 
dence to  justify  the  finding  of  the  county 
court  judge  that  there  was  an  accident. 

Inflammation  of  the  kidneys,  caused  by 
being  obliged  to  work  in  water  for  a  fort- 
night, is  injury  by  accident.  Sheerin  v. 
Clayton  [1910]  2  I.  R.  105,  44  Ir.  Law 
Times,  23,  3  B.  W.  C.  C.  583. 

In  McLuckie  v.  Watson  [1913]  S.  C.  975, 
50  Scot.  L.  R.  770,  6  B.  W.  C.  C.  850,  where 
a  miner  contracted  a  chill  and  became  in- 
capacitated as  the  result  of  standing  in  the 
water  for  some  thirty  minutes,  it  was  held 
that  as  the  wetting  was  voluntarily  in- 
curred in  an  attempt  to  be  among  the  first 
to  reach  the  top  of  the  shaft,  it  could  not 
be  said  to  be  an  accident  arising  out  of  the 
employment. 

*3  A  miner  who,  because  of  a  wreck  in 
a  shaft,  was  obliged  to  wait  an  hour  and 
a  half  at  the  downcast  shaft,  which  sub- 
jected him  to  a  draught  which  gave  him  a 
chill,  and  subsequently  died  from  pneu- 
monia, suffers  an  accident,  and  his  depend- 
ents are  entitled  to  compensation.  Coyle  or 
Brown  v.  Watson  [1915]  A.  C.  (Eng.)  1, 
111  L.  T.  N.  S.  347,  30  Times  L.  R.  501,  58 
Sol.  Jo.  533,  [1914]  W.  N.  195,  7  B.  W.  C.  C. 
257,  83  L.  J.  P.  C.  N.  S.  307,  [1914]  W.  C. 
&  Ins.  Rep.  228,  reversing  [1913]  S.  C.  593, 
50  Scot.  L.  R.  415,  [1913]  W.  C.  &  Ins.  Rep. 
223,  6  B.  W.  C.  C.  416. 

44  Where  a  workman  was  injured  in  such 
a  way  as  to  necessitate  an  operation,  and, 
before  he  had  recovered  from  the  operation, 
was  attacked  by  scarlet  fever,  which  de- 
layed the  healing  of  the  wound,  and  cause;! 
it  to  become  unhealthy  and  suppurate, 
which  necessitated  a  second  operation,  witli 
the  result  that  the  knee  joint  was  stiff  and 
L.R.A.1936A. 


got  into  his  eyes,  and  by  rubbing  them 
an  abrasion  was  caused  which  necessi- 
tated the  removal  of  the  eye,  and  af- 
fected the  sight  of  the  other.47  But 
where  a  microbe  from  some  source  not 
connected  with  the  employment  entered 
the  eye  and  set  up  inflammation,  the 
county  court  judge  was  justified  in  hold- 
ing that  the  employers  were  not  liable 
to  compensation  for  the  resulting  inca- 
pacity, although  the  workman  had  pre- 
viously got  harmless  dust  into  his  eye, 
and  by  rubbing  it  had  caused  an  abra- 
sion rendering  the  action  of  the  microbe 
more  serious.47*  It  has  been  held  by 
the  House  of  Lords,  sustaining  the  court 
of  appeal,  that  an  infection  of  a  work- 
man with  anthrax  while  engaged  in 
handling  wool  is  an  "accident." " 

could  not  be  moved,  and  one  leg  a  little 
shorter  than  the  other,  the  county  court 
judge  erred  in  finding  that  the  resulting 
incapacity  was  not  caused  by  the  accident, 
but  by  the  scarlet  fever.  Brown  v.  Kent 
[1913]  3  K.  B.  (Eng.)  624,  82  L.  J.  K.  B. 
N.  S.  1039,  109  L.  T.  N.  S.  293,  29  Times 
L.  R.  702,  [1913]  W.  N.  258,  6  B.  W.  C.  C. 
745. 

45  A  canvasser  and  collector  of  accounts 
who,  in  going  up  into  a  flat  three  flights  of 
stairs  up,  overexerted  himself  and  became 
sweated,  with  the  result  that  he  contracted 
a   chill   which   developed   into   pleurisy   and 
incapacitated  him  from  work,  did  not  suffer 
from  accident.     M'Millan  v.  Singer  Sewing 
Mach.  Co.   [1913]   S.  C.  346,   [1913]   W.  C. 
&  Ins.  Rep.  70,  50  Scot.  L.  R.  220,  6  B.  W. 
C.  C.  345,  [1912]  2  Scot.  L.  T.  484. 

46  The  Lord  President  said:     "Looking  at 
this  as  a  plain  man,  I  think  that  nothing 
could  be  further  removed  from  an  accident 
than  what  happened  in  this  case.     All  that 
the  claimant  can  say  is  that  in  the  course 
of  his  ordinary  work  he  got  overheated, — 
he  got,  as  he  puts  it,  sweated, — and  that 
when  he  got  home  he  felt  that  he  had  con- 
tracted a  chill,  and  afterwards  found  that 
he  was  suffering  from  pleurisy.    I  must  say 
that  until  I  am  compelled  to  say  so  by  a 
higher   tribunal,  I   shall   never   admit   that 
such  a  thing  as  this  is  an  accident."     Ibid. 

47  Adams  v.  Thompson  (1911)  5  B.  W.  C. 
C.   (Eng.)   19. 

47a  Bellamy  v.  Humphries  [1913]  W.  C. 
&  Ins.  Rep.  (Eng.)  169,  6  B.  W.  C.  C.  53. 

48Brintons  v.  Turvey  [1905]  A.  C.  (Eng.) 
230,  74  L.  J.  K.  B.  N.  S.  475,  53 
Week.  Rep.  641,  92  L.  T.  N.  S.  578,  21 
Times  L.  R.  444,  2  Ann.  Cas.  137,  affirming 
[1904]  1  K.  B.  (Eng.)  328,  73  L.  J.  K.  B. 
N.  S.  158,  68  J.  P.  193,  52  Week.  Rep.  195, 
89  L.  T.  N.  S.  690,  20  Times  L.  R.  129. 

This  case  was  decided  before  the  enact- 
ment of  the  3d  schedule  of  the  act  of  1906, 
which  relates  to  industrial  diseases.  It 
will  be  noted  that  the  disease,  anthrax,  is 
expressly  included  in  that  schedule.  The 
reasoning  of  the  various  judges  in  the  court 
of  appeal  and  in  the  House  of  Lords  sits- 


38 


WORKMEN'S  COMPENSATION. 


Prostration  by  sunstroke  may  be 
found  to  be  an  accident.49  So  death  re- 
sulting from  a  heat  stroke  may  be  found 
to  be  due  to  an  accident.60  Cases  in- 
volving sunstroke  and  heat  stroke  or 
heat  prostration,  however,  usually  turn 
on  the  question  whether  the  injury  arises 
"out  of  and  in  the  course  of"  the  em- 
ployment. See  notes  74  et  seq.,  infra. 

Injuries  resulting  from  an  assault  by 
third  persons  upon  a  workman  while  he 
is  acting  strictly  within  the  scope  of  his 
employment  in  defending  the  property 
of  his  employer  are  injuries  by  "acci- 


dent." 51  So  an  assistant  school  master 
in  an  industrial  school,  who  died  from 
a  fracture  of  the  skull  and  other  in- 
juries, the  result  of  an  assault  committed 
upon  him  by  several  boys  in  the  school 
in  pursuance  of  a  prearranged  plan,  suf- 
fered injury  by  accident.62  And  in  one 
case  it  was  held  that  although  the  in- 
jury was  caused  by  a  stone  wilfully 
thrown  by  a  boy,  it  might  be  said 
to  be  an  "accident"  from  the  stand- 
point of  the  one  who  suffered  the  in- 
jury.68 But  the  Scotch  court,  on  the 
contrary,  has  held  that  an  employee 


taining  this  conclusion  is  not  entirely  clear, 
and  can  only  be  explained  upon  the  theory 
that  the  learned  judges  believed  that  the 
"bacillus  of  anthrax  was  something  so  tangi- 
ble that  an  impact  of  such  a  bacillus  with 
a  portion  of  the  human  body  could  be  com- 
pared with  the  impact  of  some  material  ob- 
ject, such  as  sand  or  a  particle  of  steel,  etc.; 
but  the  bacillus  of  other  diseases  is  of  less 
tangible  form.  The  judges  sustaining  the 
judgment  held  that  infection  with  anthrax 
did  not  differ  from  cases  of  tetanus,  ery- 
sipelas, pneumonia,  etc.,  following  the  acci- 
dent, but  Lord  Robertson  pointed  out  that 
in  those  cases  there  was  an  accident  dis- 
tinct from  the  disease,  while  in  the  case  at 
bar  the  so-called  accident  was  solely  the 
inception  of  the  disease. 

Both  Lord  Lindley  in  the  House  of  Lords 
and  Cozens-Hardy,  L.  J.,  in  the  court  of 
appeal,  sustaining  the  judgment,  stated  that 
it  was  not  every  disease  caught  by  a  work- 
man in  the  course  of  his  employment  that 
was  to  be  regarded  as  an  accident  within 
the  meaning  of  the  statute;  but  the  lan- 
guage of  the  other  judges  is  so  broad  that 
if  ^  weight  is  given  to  their  observation  it 
is  difficult  to  see  how  any  disease  arising  j 
from  infection  to  which  the  workman  was 
subjected  while  in  the  scope  of  his  employ- 
ment would  not  come  within  the  application 
of  the  statute.  For  instance,  in  the  court 
of  appeal  Mathew,  L.  J.,  said:  "It  was  an  j 
accident  that  the  workman  in  dealing  with 
the  wool  was  brought  in  contact  with  that 
which  might  infect  him  with  this  disease 
of  anthrax,  and  it  was  a  further  accident 
that  the  disease  attacked  him."  So  also 
Cozens-Hardy,  L.  J.,  said:  "It  seems  to 
me  that  on  the  facts  of  this  case  we  have 
something  unexpected  arising  by  reason  of 
dealing  with  raw  materials  in  the  process 
of  manufacture  in  which  the  workman  was 
engaged." 

In   the  House   of  Lords,  Lord  Halsbury, 
L.  C.,  compared  the  contract  of  the  bacillus 
of   anthrax  with   that   of  a  tack   or   other 
poisoned  substance  that  cut  the  skin  and 
set  up  tetanus.    Lord  Macnaghten  said:    "It 
was   an   accident   that    this   noxious    thing  ! 
escaped  the  down  draught  or  suck  of  the  ; 
fan  which  the  Board  of  Trade,  as  we  were  ' 
told,  requires  to  be   in  use  while  work   is 
going  on  in  such  a  factory  as  that  where 
the   man   was   employed.     It   was   an   acci- 
L.R.A.1916A. 


dent  that  the  thing  struck  the  man  on  a 
delicate  and  tender  spot  in  the  corner  of 
his  eye.  It  must  have  been  through  some 
accident  that  the  poison  found  entrance  in- 
to the  man's  system,  for  the  judge  finds 
that  there  was  no  abrasion  about  the  eye, 
while  the  medical  evidence  seems  to  be 
that  without  some  abrasion  infection  is 
hardly  possible." 

49  Morgan  v.  The  Zenaida  (1909)  25 
Times  L.  R.  (Eng.)  446,  2  B.  W.  C.  C.  19; 
Davies  v.  Gillespie  (1911)  105  L.  T.  N.  S. 
(Eng.)  494,  28  Times  L.  R.  6,  56  Sol.  Jo. 
11,  5  B.  W.  C.  C.  64. 

SOIsmay  v.  Williamson  [1908]  A.  C. 
(Eng.)  437,  1  B.  W.  C.  C.  232,  77  L.  J.  P.  C. 
N.  S.  107,  99  L.  T.  N.  S.  595,  24  Times 
L.  R.  881,  52  Sol.  Jo.  713,  42  Ir.  Law  Times, 
213;  Maskery  v.  Lancashire  Shipping  Co. 
(1914)  7  B.  W.  C.  C.  (Eng.)  428. 

51  The  murder  of  a  cashier  for  the  sake 
of    robbery    is    an    "accident"    within    the 
statute.     Nisbet  v.  Rayne    [1910]   2  K.  B. 
(Eng.)   689,  80  L.  J.  K.  B.  N.  S.  84,  103  L. 
T.  N.  S.  178,  26  Times  L.  R.  632,  54  Sol. 
Jo.  719,  3  B.  W.  C.  C.  507. 

A  gamekeeper  who  is  beaten  by  poachers 
suffers  an  injury  by  "accident"  within  the 
act.  Anderson  v.  Balfour  [1910]  2  I.  R. 
497,  44  Ir.  Law  Times,  168,  3  B.  W.  C.  C. 
588. 

52  Kelly    v.    Trim    Joint    District    School 
[1913]   W.  C.  &  Ins.  Rep.  401,  47  Ir.  Law 
Times,  151,  6  B.  W.  C.  C.  921,  affirmed  in 
[1914]   A.  C.    (Eng.)    667,  111  L.  T.  N.  S. 
306,  30  Times  L.  R.  452  [1914]  W.  N.  177, 
7  B.  W.  C.  C.  274,  83  L.  J.  P.  C.  N.  S.  220, 
58    Sol.   Jo.    493,   48    Ir.    Law    Times,    141, 
[1914]    W.   C.   &   Ins.   Rep.    359.      Holmes, 
L.  J.,  said:     "The  only  difficulty  in  the  case 
is  whether  what  occurred  was  an  accident. 
In    its    derivation,    accident    only    suggests 
an   occurrence,— something   that   happened; 
but    in    ordinary    use    it    means    that    un- 
expected and  undesigned  occurrence,  and  1 
am   of   opinion    that    it   implies    something 
unexpected  and  undesigned  by  both  master 
and  servant.     But  something  done  deliber- 
ately and  wilfully  by  a  third  party  may  be 
an  accident  from  the  point  of  view  of  em- 
ployers and  employed." 

53  Challis  v.  London  &  S.  W.  R.  Co.  [1905] 
2  K.  B.    (Eng.)    154,  74  L.  J.  K.  B.  N.  S 
569.  53  Week.  Rep.  613,  93  L.  T.  N.  S.  330, 
21  Times  L.  R.  486,  7  W.  C.  C.  23. 


INJURY  BY  ACCIDENT. 


39 


taking  the  place  of  strikers,  who  is  as- 
saulted by  the  latter,  is  not  injured  by 
accident,  since  the  word  "accident,"  tak- 
en in  its  popular  sense,  excludes  a  case 
where  the  injury  is  wilfully  inflicted  by 
another  person.54  In  a  later  case,  how- 
ever, Viscount  Haldane  said  that  a  work- 
man meeting  with  an  assault  meets  with 
what  may  properly  be  called  an  acci- 
dent, and  it  is  not  tLe  less  an  accident 
in  the  ordinary  and  popular  sense  in 
which  the  word  is  used,  merely  for  the 
reason  that  it  is  caused  by  personal 
violence,  and  that  the  Scotch  court  in 
the  case  just  cited  must  have  misinter- 
preted former  decisions  of  the  House  of 


Lords.55  He  also  said  that  where  the 
word  "designed"  was  used  in  defining  an 
accident  it  meant  "designed  by  the  suf- 
ferer." 

It  would  seem  to  be  clear  that  the  deci- 
sion of  the  court  of  session  is  contrary  to 
the  language  used  by  the  Lord  Chancel- 
lor, and  must  give  way  to  that  of  the 
higher  court.  The  question  whether  in- 
juries from  assault  arise  out  of  and  in  the 
course  of  the  employment  is  discussed 
hereafter.  See  notes  49  et  seq.,  infra. 

The  burden  of  proving  that  the  injury 
was  caused  by  accident  arising  out  of 
and  in  the  course  of  the  employment  is 
upon  the  applicant;56  the  accident  may 


54  Murray  v.  Denholm  [1911]  S.  C.  1088, 
48  Scot.  L.  R.  896,  5  B.  W.  C.  C.  496.  The 
Lord  Justice-Clerk  said:  "Can  it  be  said 
that  these  judgments,  in  applying  the  word 
'accident'  to  an  incident  of  wilful  crime, 
are  giving  to  it  its  popular  and  ordinary 
meaning?  I  cannot  think  so.  In  ordinary 
and  popular  language  the  word  'accident' 
excludes  wilful  intent  to  do  injury  on  the 
part  of  the  person  by  whose  act  the  injury 
is  caused,  whether  that  person  be  the 
injured  individual  himself,  or  another  per- 
son who  maliciously  injures  him.  A  wit- 
ness who  sees  an  injury  inflicted  will  de- 
clare it  to  have  been  accidental  or  inten- 
tional, according  to  what  he  observes.  It 
is  the  quality  of  the  act,  and  not  some 
relation  in  which  the  injured  person  stands 
as  regards  employment,  which  determines 
the  question  whether  what  was  done  was 
accidentally  or  wilfully  inflicted.  To  say 
that,  if  a  man  comes  into  a  place  where 
a  workman  is  employed,  and  assaults 
and  injures  and  perhaps  murders  him  (a 
case  figured  by  Lord  Young  in  M'Intyre  v. 
Rodger  [1903]  6  Sc.  Sess.  Cas.  5th  Series, 
176,  41  Scot.  L.  R.  107,  11  Scot.  L.  T.  467), 
this  is  a  crime,  and  not  an  accident  if  the 
man  is  acting  from  mere  personal  spite, 
but  that  it  is  an  accident  if  done  to  intimi- 
date the  workman  and  drive  him  out  of 
his  employment,  is  in  the  former  <*asi>  to 
use  the  word  in  its  ordinary  and  popular 
meaning,  and  in  the  latter  to  refuse  to  do 
so,  and  to  apply  it  in  a  sense  which  is 
contrary  to  ordinary  and  popular  under- 
standing. Such  an  interpretation  is  there- 
fore directly  contrary  to  the  first  part  of 
Lord  Macnaghten's  definition.  Then  again, 
it  is  to  be  observed  that  when  Lord  Mac- 
naghten  speaks  of  an  'untoward  event'  he 
speaks  of  it  as  being  one  that  is  'not  ex- 
pected or  designed.'  He  therefore  clearly 
excludes  from  his  exegesis  of  'accident' 
something  which  is  designed.  Now,  can  it 
be  said  that  when  a  man  stabs  another  or 
shoots  another,  that  that  is  mishap  or 
untoward  event  'not  designed?'  Lord  Mac- 
naghten's definition  plainly  means  that  an 
injury  inflicted  by  design  is  not  an  accident. 
That  which  is  designed  is  the  antithesis  of 
that  which  is  accidental."  In  distinguish- 
ing the  case  of  Challis,  supra,  he  further 
L.R:A.1916A. 


i  said:  "In  that  case  some  boys  dropped  a 
stone  over  the  side  of  a  bridge  as  an  en- 
gine was  passing  underneath,  intending  to 
try  to  drop  it  into  the  funnel.  It  struck 
and  broke  the  window  of  the  weatherboard, 
and  drove  some  broken  glass  into  the  en- 
gine-driver's eye.  This  was  held  to  be  an 
accident,  there  being  no  intention  to  in- 
jure, and  the  offender  being  a  young  boy. 
I  think  such  a  decision  might  be  held  to  be 
reasonable,  just  as  I  think  it  would  be 
reasonable  to  hold  that  an  injury  caused 
to  a  platelayer  by  the  thoughtless  throwing 
of  an  emptied  bottle  out  of  a  train  might 
be  held  to  be  caused  by  accident.  The 
doing  of  a  foolish  thing  may  be  held  not  to 
be  designedly  dpne  to  cause  injury."  It 
cannot  be  said  that  the  reasoning  is  entire- 
ly satisfactory. 

55  Trim    Joint    District    School    v.    Kelly 
[1914]  A.  C.  (Eng.)  667,  83  L.  J.  P.  C.  N.  S. 
220,  111  L.  T.  N.  S.  306,  30  Times  L.  R. 
452,  58  Sol.  Jo.  493,  7   B.   W.  C.  C.   274, 
[1914]  W.  N.  177,  48  Ir.  Law  Times,  141, 
[1914]  W.  C.  &  Ins.  Rep.  359. 

56  McDonald  v.  The  Banana   [1908]   2  K. 
B.   (Eng.)   926,  24  Times  L.  R.  887,  52  Sol. 
Jo.  741,  78  L.  J.  K.  B.  N.  S.  26,  99  L.  T. 
N.   S.   671;   Honor  v.   Painter    (1911)    4  B. 
W.   C.   C.    (Eng.)    188;    Browne  v.   Kidman 
(1911)  4  B.  W.  C.  C.  (Eng.)  199;  Powers  v. 
Smith    (1910)    3  B.  W.  C.  C.    (Eng.)    470; 
Walker  v.  Murray  [1911]  S.  C.  825,  48  Scot. 
L.  R.  741,  4  B.  W.  C.  C.  409;   Hawkins  v. 
Powells   Tillery  Steam   Coal   Co.    [1911]    1 
K.  B.  (Eng.)  988,  80  L.  J.  K.  B.  N.  S.  769, 
104  L.  T.  N.  S.  365,  27  Times  L.  R.  282,  55 

i  Sol:  Jo.  329,  4  B.  W.  C.  C.   178    (an  aged 
!  workman  in  colliery  died  from  angina  pec- 
toris) ;   Marshall  v.  The  Wild  Rose   [1910] 
A.  C.  (Eng.)  486,  79  L.  J.  K.  B.  N.  S.  912, 
i  103  L.   T.  N.  S.  114,  26  Times  L.  R.  608, 
j  54  Sol.  Jo.  678,  3  B.  W.  C.  C.  514,  11  Asp. 
i  Mar.  L.  Cas.  409,  48  Scot.  L.  R.  701   (sailor 
I  left  his  berth  on  a  hot  night  to  cool  him- 
;  self    on    deck;    body    found    next    morning 
!  under    gunwale    where    members    of    crew 
sometimes  sat  down) ;   Ashley  v.  Lilleshall 
Co.  (1911)   5  B.  W.  C.  C.   (Eng.)  85;  Clark- 
son  v.  Charente  S.  S.  Co.   [1913]  W.  C.  & 
Ins.  Rep.    (Eng.)    422,  6  B.  W.  C.  C.   540; 
Morris  v.  Turford  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  502,  6  B.  W.  C.  C.  606;  Thackway  v. 


40 


WORKMEN'S  COMPENSATION. 


be  proved  by  legitimate  inference  from 
the  circumstances  shown,67  but  the  arbi- 
trator cannot  indulge  in  speculation  as 
to  what  caused  the  injury ;  68  there  must 
be  something  more  than  guess,  conjec- 
ture, or  surmise,69  and  an  award  will  be 
set  aside  where  there  is  no  evidence  of 
an  accident.60  Whether  or  not  the  work- 
man suffers  injury  by  "accident"  is  a 
question  of  fact.61 

c.   "Arising  out  of  and  in  the  course  of 
the  employment'1    (§  1,  subsec.  1)  . 

For  the  American  decisions  construing 
this  phrase,  see  post,  232. 

The  statute  provides  that  the  compen- 
sation is  payable  only  when  an  injury 
arises  "out  of  and  in  the  course  of  the 
employment."  It  is  not  sufficient  that 
the  injury  occurs  in  the  course  of  the 
employment,  it  must  also  arise  "out  of 


the  employment."  62  Since  these  phrases 
are  used  conjunctively,  any  discussion  of 
the  distinction  between  them  is  aca- 
demic,68 for,  although  there  must  be  some 
difference  in  the  meaning,  yet  the  work- 
man must  satisfy  both  branches  of  the 
requirement  in  order  to  be  entitled  to 
compensation. 

It  is  rather  difficult  to  conceive  of  any 
injury  which  arises  "out  of"  the  em- 
ployment, which  does  not  arise  "in  the 
course  of"  it;  but  the  converse,  however, 
is  not  true,  for,  as  is  shown  in  many  of 
the  cases  cited  below,  it  has  been  held 
that,  although  the  injury  arose  in  the 
course  of  the  employment,  it  did  not 
arise  "out  of"  it,  and  consequently  no 
compensation  is  recoverable. 

The  determination  of  this  question 
presents  one  most  difficult  problem  in 
connection  with  the  act.  It  has  been 


Connelly  (1909)  3  B.  W.  C.  C.  (Eng.)  37; 
Trigg  v.  Vauxhall  Motors  [1914]  W.  C.  & 
Ins.  Rep.  (Eng.)  251,  7  B.  W.  C.  C.  462; 
White  v.  Sheepwash  (1910)  3  B.  W.  C.  C. 
(Eng.)  382. 

"A  workman  is  bound  clearly  to  show 
the  nature  of  the  accident  which  happened 
to  him,  and  that  it  occurred  in  the  course 
of  his  employment."  Durocher  v.  Kinsella 
(1911)  Rap.  Jud.  Quebec  40  C.  S.  459. 

The  burden  of  proof  that  it  was  the  acci- 
dent in  question,  and  not  the  workman's 
previous  condition,  which  rendered  him  in- 
capacitated is  upon  the  applicant.  Shier 
v.  Highbridge  Urban  Dist.  Council  (1908;  C. 
C.)  1  B.  W.  C.  C.  (Eng.)  347. 

57  Woods  v.  Wilson   [1913]  W.  C.  &  Ins. 
Rep.   (Eng.)   569,  29  Times  L.  R.  726,  6  B. 
W.  C.  C.  750. 

58  In  Perry  v.  Ocean  Coal  Co.   [1912]  W. 
C.  Rep.  (Eng.)  212,  106  L.  T.  N.  S.  713,  5 
B.  W.  C.  C.  421,  where  a  workman  who  was 
suffering     from     an     old     hernia     died     of 
strangulated  hernia,  but  there  was  no  evi- 
dence   of    any    strain    which    caused    the 
strangulation  to  come  on,  Cozens-Hardy,  M. 
R.,  said:     "Although  a  county  court  judge 
may  act,  and  must  act,  and  ought  to  act, 
in  many  cases  without  any  direct  evidence, 
and  although  he  ought  and  in  many  cases 
must  act  upon  indirect  evidence  which  justi- 
fies his  drawing  the  inference,  there  is  noth- 
ing to  justify  him  in  that  which  is  really  a 
case  of  merely  balancing  up  probabilities." 

The  widow  of  a  workman  has  not  dis- 
charged the  burden  of  proof  that  the  death 
of  her  husband  was  due  to  the  accident, 
which  rendered  necessary  the  amputation 
of  the  index  finger  of  his  hand,  where  the 
evidence  showed  that,  as  he  was  recovering 
from  the  effects  of  the  anaesthetic  given  for 
the  first  operation,  the  surgeons  adminis- 
tered a  second  anaesthetic  for  the  purpose  of 
removing  a  tooth,  and  that  he  died  shortly 
after  from  failure  of  respiration  caused  by 
the  anaesthetic.  Charles  v.  Walker  (1909) 
25  Times  L.  R.  (Eng.)  609,  2  B.  W.  C.  C.  5. 
L.R.A.1916A. 


59  Woods  v.  Wilson  [1913]  W.  C.  &  Ins. 
Rep.  (Eng.)  569,  29  Times  L.  R.  726,  6  B.  W. 
C.  C.  750. 

60Langley  v.  Reeve  (1910)  3  B.  W.  C.  C. 
(Eng.)  175;  Griffiths  v.  North's  Nav.  Col- 
lieries (1911)  5  B.  W.  C.  C.  (Eng.)  21. 

The  workman  is  not  entitled  to  compen- 
sation although  there  was  an  accident,  and 
although  he  is  still  weak,  where  there  is 
nothing  to  connect  his  present  weakness 
with  the  accident.  Huggins  v.  Guest  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  191,  6  B.  W.  C.  C. 
80. 

61  Johnson  v.  The  Torrington  (1909)  3  B. 
W.  C.  C.  (Eng.)  68. 

62  Fitzgerald    v.    Clarke    [1908]    2   K.    B. 
(Eng.)  796,  1  B.  W.  C.  C.  197.    Buckley,  L. 
J.,  said:      "The  words   'out  of  and   in   the 
course   of   the   employment'   are   used   con- 
junctively, and  not  disjunctively,  and,  upon 
ordinary  principles  of  construction,  are  not 
to  be  read  as  meaning  'out  of,'  that  is  to 
say,  'in  the  course  of.'     The  former  words 
must    mean    something   different    from    the 
latter  words.     The  workman  must  satisfy 
both  the  one  and  the  other." 

63  "The  words  'out  of  point,  I  think,  to 
the   origin    or   cause   of   the   accident;    the 
words  'in  the  course  of  to  the  time,  place, 
and  circumstances  under  which  the  accident 
takes  place.    The  former  words  are  descrip- 
tive of  the  character  or  quality  of  the  acci- 
dent.    The  latter  words  relate  to  the  cir- 
cumstances under  which  an  accident  of  that 
character  or  quality  takes  place.    The  char- 
acter or  quality  of  the  accident  as  conveyed 
by  the  words  'out  of  involves,  I  think,  the 
idea  that  the  accident  is  in  some  sense  due 
to  the   employment.     It   must   be  an   acci- 
dent resulting  from   a  risk  reasonably  in- 
cident to  the  employment."     Ibid.    (Eng.) 

In  Kennedy  v.  Grand  Trunk  P.  R.  Co. 
(1913)  7  B.  W.  C.  C.  (Sask.)  1046,  in  the 
supreme  court  of  Saskatchewan,  Elwood  J., 
quoted  with  approval  the  above  statement 
from  the  judgment  of  Buckley,  L.  J. 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


41 


said  that  each  case  must  depend  upon 
its  own  circumstances,64  and  cannot  be 
solved  by  reference  to  any  formula  or 
general  principle.65 

It  may  be  stated  generally  that  the 
phrase  "out  of  and  in  the  course  of  the 
employment"  embraces  only  those  acci- 
dents which  happen  to  a  servant  while 
he  is  engaged  in  the  discharge  of  some 
function  or  duty  which  he  is  authorized 
to  undertake,  and  which  is  calculated  to 
further,  directly  or  indirectly,  the  mas- 
ter's business.  While  a  general  state- 


ment of  this  character  would  undoubted- 
ly be  subscribed  to  by  all  the  courts 
having  occasion  to  pass  upon  this  ques- 
tion, nevertheless  there  is  great  difficulty 
in  applying  it  to  the  particular  facts  aris- 
ing in  the  individual  cases. 

The  risk  must  be  one  peculiarly  inci- 
dent to  the  employment,66  and  not  one 
incurred  by  everyone,  whether  in  the 
employment  or  not.67  Where  an  injury 
occurs  upon  a  street  from  causes  to 
which  all  persons  upon  the  street  are 
exposed,  it  cannot  be  said  to  arise  out 


64  M'Laren  v.  Caledonian  R.  Co.  [1911]  S. 
C.  1075,  48  Scot.  L.  R.  885,  5  B.  W.  C.  C. 
492,  citing  Haley  v.  United  Collieries  [1907] 
S.  C.  216,  44  Scot.  L.  R.  584. 

85  M'Laren  v.  Caledonian  R.  Co.  (Scot.) 
supra;  Pritchard  v.  Torkington  [1914]  W. 
C.  &  Ins.  Rep.  (Eng.)  271,  7  B.  W.  C.  C. 
719. 

The  question  whether  or  not  the  accident 
arose  out  of  and  in  the  course  of  the  em- 
ployment cannot  be  solved  by  phrases. 
Watkins  v.  Guest  (1912)  106  L.  T.  N.  S. 
(Eng.)  818,  5  B.  W.  C.  C.  307. 

66  Fitzgerald  v.  Clarke  [1908]  2  K.  B. 
(Eng.)  796,  99  L.  T.  N.  S.  101,  77  L.  J.  K. 

B.  N.  S.  1018,  1  B.  W.  C.  C.  197. 

A  taxi-cab  driver  who  was  ordered  to 
drive  an  officer  during  the  night  to  a  fort 
near  Plymouth,  and  who  was  shot  by  a 
sentry  on  failing  to  respond  to  a  challenge 
which  he  did  not  hear  because  of  the  glass 
screen  and  the  noise  made  by  the  engine 
and  wind  and  rain,  may  be  held  to  be  in- 
jured by  accident  arising  out  of  and  in  the 
course  of  his  employment,  since  he  was 
exposed  to  a  special  risk.  Thorn  v.  Humm 
(1915)  31  Times  L.  R.  (Eng.)  194,  8  B.  W. 

C.  C.  190. 

A  sailor  injured  while  washing  his 
clothes  in  a  dark  alleyway,  by  falling  down 
a  half-open  hatchway,  suffers  injury  by 
accident  arising  "out  of  and  in  the  course 
of  his"  employment.  Cokolon  v.  The 
Kentra  (1912)  5  B.  W.  C.  C.  (Eng.)  658. 
The  work  of  washing  his  own  clothes  was 
said  to  be  incidental  to  the  employment  of 
a  sailor,  and  the  county  court  judge  had 
found  that  he  was  not  doing  the  work  in  an 
improper  place. 

Where  a  workman  employed  in  a  stable 
was  bitten  by  the  stable  cat  while  eating 
his  dinner,  the  court  held  that  the  injury 
was  incidental  to  the  employment.  Row- 
land v.  Wright  (1908)  77  L.  J.  K.  B.  N.  S. 
(Eng.)  1071,  24  Times  L.  R.  852,  [1909]  1 
K.  B.  963,  99  L.  T.  N.  S.  758,  1  B.  W.  C.  C. 
192. 

Injuries  to  a  ship  carpenter  by  being 
burned  from  a  fire  caused  by  a  shore 
laborer  who  after  lighting  a  cigarette  threw 
the  match,  while  yet  burning,  into  some 
shavings,  are  caused  by  accident  arising  out 
of  the  employment,  since  the  carpenter  was, 
by  his  employment,  required  to  work 
among  shavings,  and  had  gotten  oil  upon 
his  trousers  in  the  course  of  his  work. 
Manson  v.  Forth  &  C.  S.  S.  Co.  50  Scot.  L. 
L.R.A.1916A. 


R.  687,  [1913]  S.  C.  921,  [1913]  W.  C.  & 
Ins.  Rep.  399,  6  B.  W.  C.  C.  830. 

An  insurance  collector  who,  while  on  his 
rounds,  slipped  on  a  stair  and  injured  his 
left  side,  shoulder,  and  arm,  suffered  an 
accident  arising  out  of  his  employment,  as 
well  as  in  the  course  of  it.  Millar  v.  Refuge 
Assur.  Co.  [1912]  S.  C.  37,  49  Scot.  L.  R. 
67,  5  B.  W.  C.  C.  522.  The  Lord  President 
distinguished  between  accidents  brought  on 
by  the  employment,  and  accidents  which 
may  happen  to  anybody. 

A  brakeman  who,  after  leaving  the  en- 
gine upon  which  he  was  riding,  was  killed 
while  crossing  the  tracks  to  make  a  con- 
nection between  another  car  and  the  en- 
gine, suffered  injury  from  a  risk  peculiarly 
incidental  to  his  employment.  Kennedy 
v.  Grand  Trunk  P.  R.  Co.  (1913;  Sask.)  7 
B.  W.  C.  C.  1046. 

67  Where  a  workman  while  driving  an 
engine  on  his  employer's  farm  was  stung 
by  a  wasp,  and  died  from  blood  poisoning 
the  risk  is  not  one  peculiarly  incident  to 
the  employment.  Amys  v.  Barton  [1912] 
1  K.  B.  (Eng.)  40,  [1911]  W.  N.  205,  81 
L.  J.  K.  B.  N.  S.  65,  105  L.  T.  N.  S.  6-19,  28 
Times  L.  R.  29,  5  B.  W.  C.  C.  124. 

The  incursion  of  a  cockchafer  through 
an  open  window  into  a  room  where  there 
is  a  light  is  a  risk  common  to  all  humanity, 
and  it  is  altogether  impossible  to  say  that 
the  alarm  caused  to  the  applicant  by  the 
flight  of  the  cockchafer,  followed  by  her 
putting  her  thumb  into  her  eye,  was  some- 
thing which  arose  outside  of  her  employ- 
ment. Craske  v.  Wigan  [1909]  2  K.  B. 
(Eng.)  635,  78  L.  J.  K.  B.  N.  S.  994,  101 
L.  T.  N.  S.  6,  25  Times  L.  R.  632,  53  Sol. 
Jo.  560.  Cozens-Hardy,  M.  R.,  said:  "I 
think  it  would  be  dangerous  to  depart  from 
that  which,  so  far  as  I  am  aware,  has  been 
the  invariable  rule  of  the  court  of  appeal 
since  these  acts  came  into  operation,  name- 
ly, to  hold  that  it  is  not  enough  for  the 
applicant  to  say,  'The  accident  would  not 
have  happened  if  I  had  not  been  engaged 
in  that  employment,  or  if  I  had  not  been 
in  that  particular  place.'  He  must  go  fur- 
ther, and  must  say,  'The  accident  arose  be- 
cause of  something  I  was  doing  in  the 
course  of  my  employment,  or  because  I  was 
exposed  by  the  nature  of  my  employment 
to  some  peculiar  danger.' " 

Where  a  workman  got  harmless  dust  into 
his  eye,  and  by  rubbing  it  caused  an  abra- 
sion, and  thereafter  a  microbe,  from  some 


42 


WORKMEN'S  COMPENSATION. 


of  the  employment  of  the  injured  work- 
man.68 But  it  has  been  said  that  the 
criterion  is  not  that  other  persons  are 
exposed  to  the  same  danger;  but,  rather, 
that  the  employment  renders  the  work- 
man peculiarly  subject  to  the  danger; 
and  recovery  has  been  allowed  in  several 
cases  where  the  workman  was  injured 
while  on  the  street  from  a  risk  to  which 
the  members  of  the  public  generally  were 
exposed,  but  to  which  the  workman  was 
peculiarly  exposed  because  of  the  fact 
that  he  was  obliged  to  go  out  upon  the 
street  almost  continually.69  And  the 
fact  that  the  man  was  not  regularly  re- 


quired to  go  upon  the  street  at  regular 
intervals,  but  only  from  time  to  time  as 
the  necessity  arose,  has  been  held  to  be 
immaterial.70 

One  division  of  the  court  of  session 
has  held  that  where  a  workman  was  in- 
jured while  engaged  in  erecting  a  stone- 
planing  machine  in  an  open  yard  by  be- 
ing struck  by  a  slate  blown  off  the  roof 
of  an  adjoining  store,  and,  owing  to  the 
stooping  position  which  he  was  obliged 
to  take  to  perform  his  work,  was  unable 
to  see  the  slate  coming,  the  finding  of 
the  arbitrator  that  he  was  injured  by 
accident  arising  out  of  and  in  the  course 


source  not  connected  with  the  employment, 
entered  the  eye  and  set  up  inflammation, 
the  county  court  judge  was  justified  in  hold- 
ing that  the  employers  were  not  liable  to 
compensation  for  the  resulting  incapacity. 
Bellamy  v.  Humphries  [1913]  W.  C.  &  Ins. 
Rep.  (Eng.)  169,  6  B.  W.  C.  C.  53. 

An  injury  to  a  workman  in  a  spinning 
mill  while  removing  his  socks  in  order  to 
do  his  work  better  is  not  one  arising  out 
of  and  in  the  course  of  his  employment. 
Peel  v.  Laurence  [1912]  W.  C.  Rep.  (Eng.) 
141,  106  L.  T.  N.  S.  482,  28  Times  L.  R. 
318,  5  B.  W.  C.  C.  274.  Buckley,  L.  J.,  said: 
"If  there  be  any  risk  in  a  man  taking  off 
his  own  socks,  it  is  a  risk  common  to  all 
who  wear  them.  It  is  no  greater  to  a  man 
who  works  in  a  spinning  mill,  than  to  one 
who  does  not  work  in  a  spinning  mill." 

An  accident  to  a  workhouse  keeper, 
caused  by  his  falling  down  the  steps  lead- 
ing to  his  private  rooms,  a  fit  of  coughing 
having  made  him  giddy  while  he  was  sitting 
on  the  steps,  does  not  arise  out  of  and  in 
the  course  of  his  employment,  where  he  was 
suffering  from  tuberculosis,  which  made  him 
cough.  Butler  v.  Burton-on-Trent  Union 
[1912]  W.  C.  Rep.  (Eng.)  222,  106  L.  T. 
N.  S.  824,  5  B.  W.  C.  C.  355.  The  state- 
ment was  made  that  there  was  nothing  pe- 
culiar to  the  employment  which  rendered 
the  risk  greater  than  that  to  which  other 
persons  were  subjected. 

68  A  janitor,  who  in  the  course  of  his 
employment,  takes  a  message  from  one 
headmaster  to  another  and  while  on  the 
street  is  overcome  with  the  heat  does  not 
suffer  an  accident  arising  out  of  and  in  the 
course  of  his  employment.  Rodger  v.  Pais- 
ley School  Bd.  [1912]  S.  C.  584,  [1912] 
W.  C.  Rep.  157,  49  Scot.  L.  R.  413,  5  B.  W. 
C.  C.  547. 

A  painter's  laborer  who  was  obliged  to 
cross  a  street  to  obtain  some  paint  and 
while  so  crossing  the  street  was  knocked 
down  by  a  tram  car,  does  not  suffer  injury 
by  accident  arising  out  of  and  in  the  course 
of  the  employment,  since  this  was  merely  a 
street  accident,  to  which  all  persons  were 
subjected.  Symmonds  v.  King  (1915)  8 
B.  W.  C.  C.  (Eng.)  189. 

A  charwoman  sent  by  her  employer  to 
post  a  letter,  who  fell  and  broke  her  leg 
while  going  to  the  postoffice  is  not  entitled 
L.R.A.1916A. 


to  compensation  since  she  was  not  exposed 
to  some  special  risk  greater  than  that  im- 
posed on  other  persons.  Sheldon  v.  Need- 
ham  (1914)  30  Times  L.  R.  (Eng.)  590,  58 
Sol.  Jo.  652,  137  L.  T.  Jo.  212,  [1914]  W.  C. 
&  Ins.  Rep.  274,  111  L.  T.  N.  S.  729,  7  B.  W. 
C.  C.  471. 

69  As,  where  the  workman  was   a   sales- 
man and  collector,  and  in  the  course  of  his 
duty  was  riding  a  bicycle,  and  was  kicked 
by    a    horse.     M'Neice    v.    Singer    Sewing 
Mach.  Co.    [1911]    S.  C.  12,  48  Scot.  L.  R. 
15,  4  B.  W.  C.  C.  351. 

And  where  a  canvasser  and  collector, 
while  riding  his  bicycle  in  the  course  of  his 
employment,  collided  with  a  tram-car  and 
was  killed.  Pierce  v.  Provident  Clothing 
&  Supply  Co.  [1911]  1  K.  B.  (Eng.)  997, 
80  L.  J.  K.  B.  N.  S.  831,  104  L.  T.  N.  S.  473, 
27  Times  L.  R.  299,  55  Sol.  Jo.  363,  4  B.  W. 
C.  C.  242. 

A  workman  whose  duty  as  a  drayman  in- 
volves his  being,  from  8  o'clock  in  the  morn- 
ing until  8  at  night,  more  or  less  constant- 
ly in  the  streets  of  London,  is  more  exposed 
to  the  risk  of  being  knocked  down  by  a 
motor  car  than  other  members  of  the  gen- 
eral public.  Martin  v.  Lovibond  [1914]  2 
K.  B.  (Eng.)  227,  83  L.  J.  K.  B.  N.  S.  806, 
110  L.  T.  N.  S.  455,  [1914]  W.  N.  47,  [1914] 
W.  C.  &  Ins.  Rep.  76,  7  B.  W.  C.  C.  243,  5 
N.  C.  C.  A.  985. 

The  Pierce  and  M'Neice  Cases  were  dis- 
tinguished in  Greene  v.  Shaw  [1912]  1  I.  R. 
480,  [1912]  W.  C.  Rep.  25,  46  Ir.  Law  Times, 
18,  5  B.  W.  C.  C.  573,  where  the  workman 
was  obliged  to  go  but  once  or  twice  a  day 
over  a  quiet  country  road. 

The  manager  of  a  branch  store  who  once 
a  week  rides  his  bicycle,  for  a  distance 
of  2  miles  to  another  branch  store  in  order 
to  submit  his  books  to  inspection,  and, 
while  riding  his  bicycle,  slips  and  falls  and 
is  injured,  does  not  suffer  injury  by  acci- 
dent arising  out  of  and  in  the  course  of  the 
employment,  since  he  is  not  exposed  to  any 
greater  risk  than  any  other  member  of 
the  public.  Slade  v.  Taylor  [1915]  W.  C. 
&  Ins.  Rep.  (Eng.)  53,  8  B.  W.  C.  C.  65. 

70  Injury   to   a   coachman   who,  with   the 
knowledge  of  the  employer,  rode  a  bicycle 
to  a  postoffice  to  call  for  a  letter,  and  who 
was  injured  by  a  man  lurching  against  the 
bicycle  and  upsetting  it,  arose  out  of  the 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


43 


of  his  employment  would  not  be  dis- 
turbed.71 The  court  said  that  this  case 
was  one  of  the  class  where  a  workman 
was  injured  by  accident  arising  out  of  j 
a  state  of  circumstances  to  which  all  per- 
sons are  more  or  less  exposed,  but  that, 
as  the  arbitrator  had  found  that  the 
position  which  the  workman  must  nec- 
essarily  occupy  in  connection  with  his 
work  resulted  in  excessive  exposure  to 
the  common  risk,  it  was  open  to  the  con- 
clusion that  the  accident  did  not  arise 
out  of  the  common  risk,  but  out  of  the 
employment.  The  other  division  subse- 
quently held  that  a  carter  who,  while 
leading  a  horse  attached  to  a  lorry,  out 
of  his  employer's  barn,  was  struck  by  a 
piece  of  iron  blown  off  from  an  adjoin- 
ing roof,  was  not  injured  by  accident 
arising  out  of  the  employment.72  This 
case  was  distinguished  from  the  other 
upon  the  ground  that  the  injured  em- 
ployee was  subject  to  an  ordinary  risk, 
and  the  nature  of  his  employment  was 
not  such  as  to  render  him  more  liable  to 
injury  than  to  a  person  not  in  the  em- 
ployment. Lord  Dundas  said,  however, 
that  he  confessed  to  find  it  very  difficult 
to  point  to  any  really  substantial  or 
satisfactory  distinction  between  the  two 
cases.  The  English  court  of  appeal  has 
rendered  a  decision  similar  to  that  in 
the  latter  case.73 


Whether  injuries  caused  by  the  weath- 
er or  climatic  conditions  arise  out  of  the 
employment  is  a  question  which  has  fre- 
quently been  before  the  court,  and  the 
decisions  are  not  entirely  harmonious. 
Where  the  character  of  the  work  ren- 
ders the  workman  peculiarly  subject  to 
the  injury  in  question,  it  is  usually  held 
that  it  arises  out  of  the  employment; 
as,  where  a  sailor  exposed  to  the  heat  of 
a  tropical  country  suffers  a  sunstroke,74 
and  where  workmen  engaged  in  the  hold 
of  a  vessel  at  work  near  the  furnaces 
or  a  boiler,  because  of  the  great  heat 
suffers  from  heat  stroke.76  But  on  the 
other  hand  it  has  been  held  that  a  plumb- 
er whose  vitality  was  impaired,  and  who 
was  engaged  on  a  hot  day  in  laying  and 
joining  pipe  in  a  trench,  and  suffered  a 
stroke  of  heat  apoplexy,  was  not  injured 
by  accident,  although  his  work  required 
considerable  stooping.76  So,  too,  it  has 
been  held  that  a  journeyman  baker 
whose  hand  and  arm  were  frostbitten 
while  on  his  rounds,  was  not  exposed  to 
such  an  injury  any  more  than  any  other 
outside  laborer.77 

Injury  by  lightning  has  been  held  to 
arise  out  of  the  employment,  in  a  case 
in  which  the  workman,  because  of  the 
character  of  his  place  of  work,  was 
peculiarly  liable  to  be  struck.78  But  a 
workman  on  the  street  is  no  more  like- 


employmont;  and  the  fact  that  the  coach- 
man might  have  been  required  to  go  to 
the  postoffice  every  dav,  or  might  not  be 
obliged  to  go  for  a  fortnight,  is  immaterial. 
Bett  v.  Hughes  (1914)  52  Scot.  L.  R.  93, 
[1915]  S.  C.  150,  8  15.  W.  C.  C.  362. 

71  Anderson  v.  Adams  [1913]  W.  C.  & 
Ins.  Rep.  506,  50  Scot.  L.  R.  855,  6  B.  W.  C. 
C.  874. 

WKinghorn  v.  Guthrie  [1913]  S.  C.  1155, 
[1913]  W.  C.  &  Ins.  Rep.  509,  50  Scot.  L.  R. 
863,  6  B.  W.  C.  C.  887. 

73  A    workman    who,    while    engaged    in 
work  in  a  mill  yard,  is  struck  on  the  back 
by    a    substance    thrown    from    one   of    the 
upper  windows  of  the  mill,  does  not  suffer 
injury  by  accident  arising  out  the  employ- 
ment.     Bateman    v.    Albion    Combing    Co. 
[1914]  W.  C.  &  Ins.  Rep.  (Eng.)  18,  7  B.  W. 
C.  C.  47. 

74  An    ordinary    seaman    who,    while    en- 
gaged in  painting  the  sides  of  a  vessel  lying 
in  a  port  off  the  Mexican  coast,  was  seized 
with  sunstroke,  is  injured  by  accident  aris- 
ing out  of  his  employment.    Morgan  v.  The 
Zenaida  [1909]  25  Times  L.  R.   (Eng.)  446. 

In  Davies  v.  Gillespie  (1911)  105  L.  T.  N. 
S.  (Eng.)  494,  28  Times  L.  R.  6,  56  Sol.  Jo. 
11,  5  B.  W.  C.  C.  64,  it  was  held  that  the 
county  court  judge  might  find  that  a  work- 
man who  was  obliged  to  stand  on  the  black- 
ened steel  deck  of  a  vessel,  leaning  over  a 
hatchway,  from  6  A.  M.  to  11  A.  M.,  at  a 
harbor  in  Haiti,  and  who  suffered  from  ex- 
L.R.A.1916A. 


posure  to  the  sun,  was  more  exposed  by 
reason  of  his  occupation  than  other  per- 
sons would  have  been,  and  that  the  injury 
arose  out  of  his  employment. 

75Ismay  v.  Williamson  [1908]  A.  C.  437, 
42  Ir.  Law  Times,  213,  1  B.  W.  C.  C.  232, 
77  L.  J.  P.  C.  N.  S.  107,  99  L.  T.  N.  S.  595, 
24  Times  L.  R.  881,  52  Sol.  Jo.  713. 

An  engineer  in  the  engine  room  on  a 
steamship  in  the  tropics,  who  suffers  a  heat 
stroke  and  subsequently  dies,  is  killed  by 
accident  arising  out  of  the  employment. 
Maskery  v.  Lancashire  Shipping  Co.  (1914) 
7  B.  W.  C.  C.  (Eng.)  428. 

76Robson  v.  Blakey  [1912]  S.  C.  334,  49 
Scot.  L.  R.  254,  [1912]  W.  C.  Rep.  86,  5 
B.  W.  C.  C.  536. 

77  Warner  v.  Couchman    [1911]    1   K.  B. 
(Eng.)  351,  80  L.  J.  K.  B.  N.  S.  526,  103  L. 
T.  N.  S.  693  [1910]  W.  N.  266,  27  Times  L. 
R.  121,  55  Sol.  Jo.  107,  4  B.  W.  C.  C.  32, 
1  N.  C.  C.  A.  51,  affirmed  in  H.  L.  [1911] 
W.   N.   220,   81   L.   J.   K.   B.   N.    S.   45,   28 
Times  L.  R.  58,  56  Sol.  Jo.  70. 

78  Injury  to  a  bricklayer  on  a  scaffolding 
23  feet  high,  by  lightning,  may  be  said  to 
be  caused  by  an  accident  arising  out  of  the 
employment.     Andrew  v.  Failsworth  Indus- 
trial Soc.  [1904]  2  K.  B.  (Eng.)  32,  73  L.  J. 
K.   B.   N.   S.   511,   68  J.   P.   409,   52   Week. 
Rep.  451,  90  L.  T.  N.  S.  611,  20  Times  L.  R. 
429.      It    was   pointed   out   that   ordinarily 
the   case   of   a    workman   being   struck   by 
lightning  would  be  typical  of  an  accident 


44 


WORKMEN'S  COMPENSATION. 


ly  to  be  struck  by  lightning  than  any 
other  person,  and  consequently  no  com- 
pensation is  recoverable  for  injuries 
from  such  a  cause.79 

A  miner  who  was  killed  by  a  snow 
slide  while  taking  refuge  in  a  shelter 
provided  for  miners  in  severe  weather 
suffered  an  accident  arising  out  of  the 
employment,  where  his  place  of  work 
and  the  shelter  were  within  the  zone  of 
danger  from  snow  slides,  although  the 
slide  in  question  was  an  extraordinary 
or  abnormal  event.80 

In  order  that  the  injury  may  be  one 


arising  out  of  the  employment,  the  work- 
man must  be  acting  within  the  scope  of 
his  employment  at  the  time  of  his  in- 
jury ; 81  compensation  will  be  denied 
where  the  danger  was  voluntarily  in- 
curred in  doing  acts  wholly  outside  of 
the  scope  of  the  employment,82  or  where 
at  the  time  of  the  injury,  the  workman 
was  doing  work  for  a  person,  other  than 
his  employer,83  or  doing  the  work  of 
other  employees.84  But  the  mere  fact 
that  at  the  time  of  the  injury  the  work- 
man had  changed  places  with  another 
workman  will  not  prevent  a  recovery, 


arising  altogether  outside  of  the  employ- 
ment, but  that  in  the  case  at  bar  the  work- 
man's position  exposed  him  to  more  than  a 
normal  risk. 

79  In    Kelly    v.    Kerry    County    Council 
(1908)  42  Ir.  Law  Times,  23,  1  B.  W.  C.  C. 
194,  it  was  held  that  the  death  of  a  work- 
man who  was  killed  by  lightning  while  at 
work  on  a  street  keeping  the  outlets  and 
gulleys  clear,  so  as  to  prevent   the   street 
from  being  flooded,  was  not  due  to  an  acci- 
dent arising  "out  of  and  in  the  course  of" 
the   employment.     After   referring   to   An- 
drew v.  Failsworth   Industrial   Soc.    (Eng.) 
supra,  the  county  court  judge  said:     "But 
I  am  unable  to  find  any  special  or  peculiar 
danger  from  lightning  to  which  these  men 
were   exposed    from    working   on   the   road. 
No  expert  or  other  evidence  was  olfered  to 
me  that  their  position  on  the  road  exposed 
them  to  any  greater  risk  of  being  struck 
by  lightning  than  if  they  had  been  work- 
ing  in    a    field   or   a   garden   or   a    factory. 
The  antecedent  probability  that  they  would 
be  struck  by  lightning  was  no  greater   in 
their  case  than  it  was  in  the  case  of  any 
other   person   who   was   within    the    region 
over  which  the  thunderstorm  passed."     The 
county   court  judge   was  unanimously   sus- 
tained by  the  Irish  court  of  appeal. 

80  Culshaw  v.  Crow's  Nest  Pass  Coal  Co. 
(1914;B.  C.)   7  B.  W.  C.  C.  1050. 

81  Compensation     was     denied     where     a 
workman   was   injured   while   mounting   an 
empty   cart   to   ride   from   one   of   his   em- 
ployer's farms  to  another,  it  being  his  duty 
to  go,  but  he  having  no  duty  in  connection 
with  the  cart.     Parker  v.  Pout   (1011)    105 
L.  T.  N.  S.   (Eng.)   493. 

And  where  a  domestic  servant  who  was 
drying  her  hair  outside  the  door  of  her 
employer's  house  was  directed  to  come  in 
and  take  charge  of  a  baby  in  a  cradle  close 
to  a  fire,  and,  while  performing  this  duty, 
continued  the  operation  of  drying  her  hair, 
and  was  fatally  injured  through  her  sleeve 
catching  fire.  Clifford  v.  Joy  (1909)  43  Ir. 
Law  Times,  192.  Fitzgibbon,  L.  J.,  said: 
"The  risk  of  taking  fire  while  engaged  in 
drying  her  hair  was  one  not  within  the 
scope  of  her  employment." 

82  A   workman    sent   to    get   a    postoffice 
order  at  a  certain  station,  who,  on  failing 
to  get  it  there,  went   some  half  mile  fur- 
ther, to  the  general  postoffice,  went  outside 
of  his  employment,  and  cannot  recover  for 
L.R.A.1916A. 


injuries  received  by  slipping  at  the  post- 
office.  Smith  v.  Morrison  (1911)  5  B.  W. 
C.  C.  (Eng.)  161. 

An  injury  to  the  arm  of  a  house  surgeon 
in  a  hospital,  caused  by  his  voluntarily 
exposing  his  arm  to  X-rays,  does  not  aris- 
"out  of  and  in  the  course  of"  his  employ- 
ment. Curtis  v.  Talbot  &  K.  Infirmary 
Committee  (1911)  5  B.  W.  C.  C.  (Eng.)  41. 

83  A  carter  whose  duty  it  was  to  deliver 
by  lorry  certain  bags  at  a  warehouse,  and 
to  make  such  deliveries  by  slinging  the  bags 
on  to  the  consignee's  tackle,  but  who  had 
no  duty  to  receive  or  throw  the  bags  in- 
side   the    warehouse,    cannot    recover    com- 
pensation   for    injuries    received    while    as- 
sisting in  slinging  bags  on  another  lorry,  the 
carter  of  which  was,  under  an  engagement 
with  the  consignee,  engaged  in  stowing  the 
bags   away   in   the   warehouse.      Sinclair   v. 
Carlton  [1914]  2  Scot.  L.  T.  105,  [1914]  S. 
C.  871,  51  Scot.  L.  R.  759,  7  B.  W.  C.  C.  937. 
The  evidence  in  this  case  showed  that  the 
carters  had  made  an  arrangement  with  the 
consignee  whereby  they  were  to  aid  iri  stow- 
ing away  the  bags,  and  for  this  work  were 
to    receive    additional    compensation    from 
the  consignee. 

A  workman  employed  by  the  proprietor 
of  a  theater  to  clean  it  is  not  entitled  to 
compensation  from  his  employer,  when  he 
is  injured  while  carrying  the  baggage  of  a 
theatrical  troupe  to  a  station  under  a  con- 
tract entirely  distinct  from  his  contract 
with  the  owner  of  the  theater.  Huscroft  v. 
Bennett  (1914)  110  L.  T.  N.  S.  (Eng.)  494, 
[1914]  W.  C.  &  Ins.  Rep.  9,  58  Sol.  Jo.  284, 
7  B.  W.  C.  C.  41. 

84  A   roadman    in   the    employment   of   a 
country  road  authority,  whose  employment 
was  solely  to  sweep  and  put  "blinding"  on 
the  road,  was  not  injured  by  accident  aris- 
ing "out  of  and  in  the  course  of"  his  em- 
ployment, where  he  was  injured  when  step- 
ping down  from  a  steam  road  roller  belong- 
ing to  the  employers,  upon  which  he  had 
gone   for   the   purpose   of   breaking   up   the 
boiler  fire  so  as  to  get  up  steam  by  7  A.  M.. 
under  an  arrangement  with  the  engineman 
to   break    up    the    fire    so   as    to    save   the 
engineman   and   fireman,   who  had  gone  to 
their  homes  for  the  night,  from  returning 
before  7  A.  M.    M'Allan  v.  Perthshire  Coun- 
ty Council  (1906)  8  Sc.  Sess.  Cas.  5th  series 
(Scot.)   783. 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


45 


where  the  change  of  employment  was ' 
done  with  the  knowledge  of  the  em- 
ployer.85 And  a  carter  driving  towards 
his  employers'  yards,  who  was  injured 
while  standing  up  in  his  place  in  order 
to  give  a  lift  to  a  fellow  workman,  suf- 
fered injury  by  accident  arising  out  of 
and  in  the  course  of  his  employment, 
where  there  was  evidence  that  the  em- 
ployers knew  of  his  practice  of  giving 
lifts  to  fellow  servants,  and  permitted 
it.86  Nor  will  recovery  be  denied  where 
a  workman  was  injured  while  doing  the 
work  for  another  employee,  if  it  was 
necessary  that  such  work  be  done  in 


order  that  his  own  work  might  pro- 
gress.87 So  a  fireman  whose  duty  it  was 
to  keep  up  the  steam  in  an  engine  did 
not  go  outside  of  his  duty  in  attempting 
to  put  back  upon  the  pulley  a  belt  by 
means  of  which  the  fuel  was  carried  to 
him,  where  the  employee  whose  duty  it 
was  to  attend  to  the  belt  was  tempo- 
rarily absent  from  his  post  of  duty.88 
So,  an  employee  is  not  necessarily  out- 
side of  his  employment  in  going  to  the 
assistance  of  other  employees  so  as  to 
further  the  business  of  the  employers.89 
There  can  be  no  recovery  where  the 
injury  was  received  by  the  workman 


85  A    workman    engaged    in    unloading    a 
ship  is  not  outside  of   his   employment   in 
changing     work     with     another     workman, 
which     was    customarily     done,    with    the 
knowledge  of  the  employers.    Henneberry  v. 
Doyle  [1912]  2  I.  R.  529,  [1912]  W.  C.  Rep. 
145,  46  Ir.  Law  Times,  70,  5  B.  W.  C.  C. 
580. 

Where  a  lad  of  nineteen  is  employed  to 
help  in  threshing  operations,  he  does  not 
leave  the  employment  by  changing  works 
with  another  boy,  where  it  is  done  with 
the  knowledge  of  the  employer's  bailiff. 
Cambrook  v.  George  (1903;  C.  C.)  114  L.  T. 
Jo.  (Eng.)  550,  5  W.  C.  C.  26. 

86  Evans  v.  Holloway   (1914)   7  B.  W.  C. 
C.    (Eng.)    248,    [1914]    W.  C.   &   Ins.   Rep. 
75. 

87  A   drawer   in   a   pit   may   be   found   to 
have   been   injured   by   an   accident   arising 
out   of   and   in   the   course   of   his   employ- 
ment, although  he  was  injured  in  perform- 
ing work  which   it  was  the  duty  of  other 
employees  to  do,  where  it  appeared  to  be 
customary  for  the  drawers  to  do  the  work 
in  question  when  the  other  employees  were 
absent,  and  it  was  found  that  such  other 
employees   were   frequently  absent   from   a 
quarter  of  an  hour  to  an  hour,  so  that .  if 
the  workman  had  not  performed  this  work 
his   own   work   would   have   been    seriously 
interrupted.      Baird    v.    Robson     (1914)    51 
Scot.  L.  R.  747,  2  Scot.  L.  T.  92,  7  B.  W. 
C.  C.  925. 

88  McCormick     v.     Kelliher     Lumber     Co. 
(1913;  B.  C.)  7  B.  W.  C.  C.  1025.    The  court 
said:      "Surely  the  putting  on  of  the  belt 
for  the  purpose  of  starting  the  carriers  to 
convey  the  fuel  to  the  point  where  it  would 
be  utilized  for  the  purpose  of  keeping  up 
steam,  the  very  purpose  for  which  he  was 
employed,  was  an  act  within  the  scope  of 
his  employment,  in  the  sense  that   it  was 
incidental  to  it;   and  although   his  defined 
duty   may   not    have    included    the    adjust- 
ing of  this  belt,  it  was  an  act  done  in  the 
interest  of  the  master  and  in  the  further- 
ance of  the  work  he  was  employed  to  do." 

89  In  Seller  v.  Boston  Rural  Dist.  Council 
(1914)   7  B.  W.  C.  C.   (Eng.)   99,  the  court 
apparently  took  the  view  that  a  roadman 
whose   work   consisted   in    seeing   that   the 
road  was  cleared  of  loose  stones  after  they 
had  been  deposited   in   a  heap  at  the  side 
L.R.A.1916A. 


I  on  being  unloaded  from  a  traction  engine, 
j  did  not  go  outside  of  his  employment  in 
helping  to  free  one  of  the  traction  engine's 
trucks  which  had  gotten  stuck  in  a  ditch; 
but  the  case  was  sent  back  upon  another 
point. 

An  injury  to  a  casual  laborer  who  had 
been  employed  by  a  farmer  to  assist  in 
threshing  arose  out  of  and  in  the  course 
i  of  his  employment  by  the  farmer,  although 
1  the  injury  occurred  after  the  threshing  had 
been  finished  and  the  farmer  had  paid  the 
laborer,  and  while  the  latter  was  assisting 
in  moving  the  machine  off  of  the  premises 
to  the  road,  where  it  is  usual  and  custom- 
ary for  the  casual  laborers  who  follow  a 
threshing  machine  in  expectation  of  being 
taken  on  by  farmers  to  assist  in  the  thresh- 
ing, to  help  in  getting  the  engine  and  ma- 
chine from  the  road  to  the  stack  and  back 
again,  and  such  help  is  frequently  necessary. 
Xewson  v.  Burstall  (1915)  84  L.  J.  K.  B.  N. 
S.  (Eng.)  535,  112  L.  T.  N.  S.  792,  50  L. 
J.  54,  [1915]  W.  C.  &  Ins.  Rep.  16,  59  Sol. 
Jo.  204,  8  B.  W.  C.  C.  21. 

Where  a  clerk  employed  at  engineering 
works,  whose  duty  was  confined  to  weighing 
and  recording  all  articles  sent  out  from 
the  works,  met  with  an  accident  which 
resulted  in  his  death  while  helping  work- 
men to  carry  a  heavy  article  to  the  weigh- 
ing machine,  the  accident  arose  out  of  and 
in  the  course  of  the  clerk's  employment, 
in  the  sense  of  the  act.  Goslan  v.  Gillies 
[1906-07]  S.  C.  (Scot.)  68. 

A  laborer  injured  while  giving  assist- 
ance to  a  machine  man,  in  replacing  some 
loose  belting  while  the  machine  was  in 
motion,  was  held  entitled  to  recover  in 
Menzies  v.  M'Quibban  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  732,  37  Scot.  L.  R.  526,  7 
Scot.  L.  T.  432. 

A  man  employed  as  a  common  workman 
to  shovel  clay  from  a  pit  on  to  a  car  may 
recover  for  injuries  which  he  received,  while 
upon  his  way  to  work,  by  stopping  to  assist 
a  fellow  workman  to  replace  upon  the  track 
one  of  the  cars  used  to  carry  the  clay,  al- 
though he  was  not  directed  by  any  fore- 
man or  superior  workman  to  aid  in  replac- 
ing the  car.  Ferguson  v.  Brick  &  Supplies 
(1914;  Alberta)  7  B.  W.  C.  C.  1054. 

A  workman  whose  duty  it  was  to  attend 
a  gate  and  a  telephone,  and  to  do  what 


46 


WORKMEN'S  COMPENSATION. 


while  doing  some  act  wholly  for  his  own 
benefit,  which  was  not  designed  in  any 
way  to  promote  the  work  of  the  em- 
ployer. Numerous  cases  in  which  this 
principle  has  been  applied  to  various 


situations  are   set  out  in  the  note   be- 
low.90 

Compensation  will  not  be  allowed 
where  a  workman  goes  to  satisfy  the 
requirements  of  nature  into  a  dangerous 


was  necessary  in  case  of  accidents,  did 
not  go  outside  of  his  employment  in  going 
to  the  aid  of  slaters  who  had  met  with  an 
accident,  although  the  slaters  were  not  in 
the  employ  of  the  employer,  but  were  en- 
gaged in  doing  work  for  him  on  the  prem- 
ises. Aitken  v.  Finlayson  [1914]  S.  C. 
770  (1914)  2  Scot.  L.  T.  27,  51  Scot.  L.  R. 
653,  7  B.  W.  C.  C.  918. 

90  "I  think  if  a  man,  for  his  own  pur- 
poses, deliberately  goes  away  from  the  place 
where  he  was  employed,  and  meets  with  an 
accident  on  the  way  back  before  he  reaches 
the  point  where  he  should  be  to  do  his 
duty,  the  judge  is  justified  in  finding  prima 
facie  that  the  accident  did  not  arise  in  the 
course  of  his  employment."  Cozens-Hardy, 
M.  R.,  in  Warren  v.  Hedley's  Colliery  Co. 
(1913)  6  B.  W.  C.  C.  (Eng.)  136. 

An  engine  driver  who  goes  across  the 
rails  to  a  signal  box  to  inquire  the  time  for 
his  own  purposes,  when  his  proper  path  does 
not  cross  the  rails  at  all,  is  not  in  the 
course  of  his  employment.  Benson  v.  Lan- 
cashire &  Y.  R.  Co.  [1904]  1  K.  B.  (Eng.) 
242,  73  L.  J.  K.  B.  N.  S.  122,  68  J.  P.  149, 
52  Week.  Rep.  243,  89  L.  T.  N.  S.  715,  20 
Times  L.  R.  139. 

A  steward  of  a  ship  who  was  authorized 
to  go  on  shore  to  the  stores  of  the  com- 
pany, and  who  while  on  shore  was  permitted 
to  go  to  his  home,  cannot  recover  compensa- 
tion for  injuries  received  at  a  point  between 
his  home  and  the  stores,  since  such  injury 
was  received  at  a  time  when  he  was  not 
acting  within  the  scope  of  his  employment. 
Lee  v.  The  St.  George  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  17,  7  B.  W.  C.  C.  85. 

A  stoker  is  not  in  the  course  of  his  em- 
ployment when,  having  been  paid  wages 
belonging  to  another  workman,  he,  in  order 
to  give  the  wages  to  the  workman,  goes 
to  the  engine  on  which  he  is  at  work,  and 
attempts  to  mount  it  while  in  motion.  Wil- 
liams v.  Wigan  Coal  &  I.  Co.  (1909)  3  B.  W. 
C.  C.  (Eng.)  65. 

Nor  was  an  engine  driver  who  got  down 
from  his  engine,  and  crossed  a  siding  to 
receive  a  book  from  a  friend,  and  was 
struck  by  some  trucks  being  shunted  on 
the  siding.  Reed  v.  Great  Western  R.  Co. 
[1908]  W.  N.  (Eng.)  212,  affirmed  in  [1909] 
A.  C.  (Eng.)  31,  78  L.  J.  K.  B.  N.  S.  31, 
99  L.  T.  N.  S.  781,  25  Times  L.  R.  36,  53 
Sol.  Jo.  31. 

Nor  was  a  workman  who,  being  sent  on 
an  errand,  took  about  two  hours  to  go  a 
mile,  and  was  injured  as  he  was  finishing 
his  journey.  Bates  v.  Davies  (1909;  C.  C.) 
126  L.  T.  Jo.  (Eng.)  454,  2  B.  W.  C.  C. 
459. 

A  workman  injured  while  placing  a  pail 
near  his  machine  for  the  purpose  of  using 
it  to  spit  into  is  not  injured  by  accident 
arising  out  of  and  in  the  course  of  his  em- 
ployment, within  the  meaning  of  the  British 
L.R.A.1916A. 


Columbia  statute.  Scalzo  v.  Columbia 
Macaroni  Factory  (1912)  17  B.  C.  201,  6 
B.  W.  C.  C.  945. 

A  cartman  who  in  drawing  his  load  goes 
off  the  regular  route  for  his  own  purposes, 
and  is  injured,  while  so  off  the  route  be- 
cause the  horse  runs  away,  does  not  suffer 
injury  by  accident  arising  out  of  and  in 
the  course  of  his  employment.  Everitt  v. 
Eastaff  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  164, 
6  B.  W.  C.  C.  184. 

There  can  be  no  recovery,  where  a  collier 
who  was  employed  to  hew  coal  in  a  particu- 
lar part  of  a  mine  deliberately  and  for  his 
own  advantage  went  to  a  different  part  of 
the  mine  and  was  injured.  Weighill  v. 
South  Hetton  Coal  Co.  [1911]  2  K.  B.  (Eng.) 
757,  note. 

Nor  where  a  dock  employee  jumped  onto 
railway  wagon  for  a  lift  home.  Morrison 
v.  Clyde  Navigation  [1909]  S.  C.  59,  46 
Scot.  L.  R.  40. 

Nor  where  an  injury  was  received  by  a 
ticket  collector  while  riding  on  the  foot- 
board of  a  train  for  his  own  pleasure,  and 
not  for  any  object  of  his  employment. 
Smith  v.  Lancashire  &  Y.  R.  Co.  [1899]  1 
Q.  B.  (Eng.)  141,  68  L.  J.  Q.  B.  N.  S.  51, 
47  Week.  Rep.  146,  79  L.  T.  N.  S.  633,  15 
Times  L.  R.  64.  The  court  emphasized  the 
point  that,  to  render  an  employer  liable  to 
pay  compensation,  the  accident  must  arise, 
not  only  "out  of,"  but  also  "in  the  course' 
of,"  the  employment. 

An  injury  to  a  workman  employed  by  a 
farmer,  upon  the  day  he  was  to  begin  his 
work,  and  while  he  was  using  the  farmer's 
horse  and  cart  to  fetch  his  box  from  the 
station,  did  not  arise  out  of  and  in  the 
course  of  his  employment,  although  it  was 
a  term  of  the  employment  that  he 
could  have  a  horse  and  cart  to  convey 
his  box  from  the  station  to  the 
farmer's  house.  Whitfield  v.  Lambert 
(1915)  112  L.  T.  N.  S.  (Eng.)  803,  Swinfen 
Eady,  L.  J.,  said  that  "the  applicant  was 
merely  using  the  respondent's  horse  and 
cart  with  leave  and  license,  as  it  was  agreed 
he  should  be  at  liberty  to  do.  He  was  going 
on  his  own  business,  and  not  on  the  farm- 
er's business.  The  accident  did  not,  there- 
fore, arise  'out  of  his  employment." 

Where  a  miner  voluntarily  stood  in  water 
for  about  half  an  hour  in  order  to  be  among 
the  first  to  go  up  .in  the  cage,  when  he 
might  have  stood  on  dry  ground  and  reached 
the  cage  comparatively  dry,  his  resulting 
incapacity  cannot  be  said  to  result  from  an 
injury  by  accident  arising  out  of  the  course 
of  his  employment.  M'Luckie  v.  Watson 
[1913]  S.  C.  975,  [1913]  W.  C.  &  Ins.  Rep. 
481,  50  Scot.  L.  R.  770,  6  B.  W.  C.  C.  850. 

A  workman  who,  in  order  to  conceal  from 
the  night  shift  of  workmen  a  tin  of  milk 
used  by  him  in  his  tea  during  the  time  al- 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


47 


and  unauthorized  place,  or  on  premises 
not  under  the  control  of  the  employer.91 
But  in  one  case  an  award  was  upheld 
where  there  was  some  evidence  justify- 
ing the  finding  of  the  arbitrator  that 
the  workman  acted  in  an  emergency.92 
There  can  be  no  recovery  of  compen- 


sation where  the  injury  is  received  while 
the  workman  himself  or  his  fellows  are 
indulging  in  horse  play.93  In  two  Scotch 
cases,  apparently  conflicting  decisions 
have  been  rendered  in  cases  in  which  one 
workman  was  trying  to  take  away  an 
appliance  from  another  workman.94 


lowed  by  the  employer  for  tea,  attempts 
to  put  it  on  a  ledge  in  close  proximity  to 
a  reciprocating  plant,  and  is  injured  while 
so  doing,  does  not  suffer  accident  by  injury 
arising  out  of  and  in  the  course  of  his  em- 
ployment. Keen  v.  St.  Clement's  Press 
(1914)  7  B.  W.  C.  C.  (Eng.)  542. 

Where  a  fish  porter  in  the  employment 
of  a  fish  stevedore  who  had  a  contract  with 
a  railway"  company  for  the  porterage  of 
fish  delivered  at  one  of  their  stations  left 
the  siding  where  the  trucks  were  customa- 
rily discharged,  and  went  along  the  line 
of  railway  for  a  purpose  not  connected  with 
his  employment,  and  was  run  down  and 
killed  by  a  railway  engine,  he  was  not 
killed  through  an  accident  arising  "out  of 
and  in  the  course  of"  his  employment. 
Hendry  v.  Caledonian  R.  Co.  (1906-07)  S.  C. 
(Scot.)  732. 

A  collier  was  not  injured  by  accident 
arising  "out  of  and  in  the  course  of"  his 
employment,  where  he  went,  on  the  day 
following  the  receipt  of  his  paynote,  to  pro- 
test against  the  amount  thereof,  with  the 
intention  of  quitting  the  employment  un- 
less it  was  adjusted,  and,  on  failing  to  re- 
ceive satisfaction,  was  injured  while  leav- 
ing the  place.  Phillips  v.  Williams  (1911) 
4  B.  W.  C.  C.  (Eng.)  143.  The  court  took 
the  view  that  he  went  onto  the  premises 
solely  for  his  own  purpose. 

An  injury  to  a  hall  porter  in  a  club  house 
did  not  arise  out  of  and  in  the  course  of 
his  employment,  where  it  was  received  while 
he  was  attempting  to  enter  the  club  house 
by  a  window  at  a  late  hour  of  the  night, 
after  the  time  when  he  was  supposed  to 
have  returned.  Watson  v.  Sherwood  (1909;  C. 
C.)  127  L.  T.  Jo.  (Eng.)  86, 2  B.  W.  C.  C.  462. 

91  As  where  a  workman  deliberately  went 
into  a  dangerous  place.  Rose  v.  Morrison 
(1911)  80  L.  J.  K.  B.  N.  S.  (Eng.)  1103, 
105  L.  T.  N.  S.  2,  4  B.  W.  C.  C.  277. 

Or  where  a  workman  went,  into  a  danger- 
ous place,  when  the  places  provided  by  the 
employer  were  in  good  order  and  close  at 
hand.  Thomson  v.  Flemington  Coal  Co. 
[1911]  S.  C.  823,  48  Scot.  L.  R.  740,  4  B.  W. 
C.  C.  406. 

A  miner  who  voluntarily  went  into  a 
deserted  portion  of  the  mine  from  which 
the  timbering  has  been  removed,  is  not  in 
the  employment,  where  places  have  been 
provided  for  the  miners  in  close  proximity 
to  his  place  of  work.  Cook  v.  Manvers  Main 
Collieries  (1914)  7  B.  W.  C.  C.  (Eng.)  696. 

Where  a  workman  leaves  the  sphere  of 
his  employment,  and  goes  onto  private 
property  where  the  employers  cannot  prob- 
ably follow  him,  even  if  they  so  wish,  the 
L.R.A.1916A. 


employers  cannot  be  held  liable  for  injuries 
received  while  he  is  there.  Cogdon  v.  Sun- 
derland  Gas  Co.  (1907;  C.  C.)  1  B.  W.  C.  C. 
(Eng.)  156. 

92  The  death   of  a  miner  who  after  re- 
ceiving his  lamp  at  the  lamp  cabin,  goes  to 
answer  a  call  of  nature  at  a  place  some- 
times used  by  the  miners  in  cases  of  emer- 
gency, and  is  killed  on  a  siding  over  which 
he   must   pass,  is  caused   by  accident  aris- 
ing "out  of  and  in  the  course  of"  his  em- 
ployment, although  other  places  have  been 
provided    for   the   use   of   the   men   by   the 
mine  owners.     Lawless  v.  Wigan  Coal  &  I. 
Co.  (1908)  124  L.  T.  Jo.  (Eng.)  532,  1  B.  W. 
C.  C.  153.    The  county  court  judge  said  that 
the  inference  could  be  drawn  that  the  de- 
ceased went  to  this  unauthorized  place  as  a 
matter  of  necessity,  and  not  of  choice. 

93  As  where  a  domestic  servant,  while  in 
the  course  of  her  duties,  was  struck  on  the 
eye   and   blinded   by   an   India   rubber   ball 
thrown  at  her  in  play  by  a  fellow  servant. 
Wilson  v.  Laing  [1909]  S.  C.  1230,  46  Scot. 
L.  R.  843. 

And  where  a  lad  set  to  clean  a  machine 
at  rest  was  injured  by  the  starting  of 
the  machine,  caused  by  him  and  another 
lad,  while  they  were  playing  around  it. 
Cole  v.  Evans  (1911)  4  B.  W.  C.  C.  (Eng.) 
138. 

And  where  the  injury  was  caused  by  the 
plaintiff's  fellow  workmen,  who  at  the  time 
were  not  engaged  in  their  work,  but  were 
indulging  in  horse  play.  Falconer  v.  Lon- 
don &  G.  Engineering  Co.  (1901)  3  Sc.  Sess. 
Cas.  5th  series,  564,  38  Scot.  L.  R.  381,  8 
Scot.  L.  T.  430. 

And  where  two  boys  in  a  candy  factory 
were  scuffling  over  a  pair  of  shears,  and 
the  eye  of  one  was  destroyed.  Doyle  v. 
Moirs,  (1915)  48  N.  S.  473. 

Where  a  workman  tapped  another  with 
a  rule  on  the  back,  and  received  a  push  in 
return,  from  which  he  fell  and  was  injured, 
the  injury  does  not  result  from  accident 
arising  out  of  and  in  the  course  of  the  em- 
ployment. Wrigley  v.  Wilson  [1913]  W.  C. 
&  Ins.  Rep.  (Eng.)  145,  6  B.  W.  C.  C. 
90. 

In  Fitzgerald  v.  Clarke  [1908]  2  K.  B. 
(Eng.)  796,  77  L.  J.  K.  B.  N.  S.  1018,  99 
L.  T.  N.  S.  101,  no  compensation  was  al- 
lowed where  other  employees  fastened  a 
hook  and  chain  attached  to  a  hoist  to  a  col- 
lar of  a  workman's  coat,  and  hoisted  him  to 
a  height  of  50  feet,  when  he  fell,  seriously 
injuring  himself. 

See  also  Mullen  v.  Stewart  [1908]  S.  C. 
(Scot.)  991,  1  B.  W.  C.  C.  204,  cited  in  note 
23,  infra. 


48 


WORKMEN'S  COMPENSATION. 


An  injury  occurring  while  the  em- 
ployee was  riding  a  bicycle  has  been 
held  to  arise  out  of  the  employment, 
where  the  use  of  the  bicycle  was  to  fur- 
ther the  master's  business,  which  could 
be  done  better  by  the  use  of  the  bi- 
cycle.95 But  if  it  is  used  merely  to  ac- 
commodate the  workman,  a  different  rule 
prevails.96 

Ordinarily    where    workmen    are    not 


employed  to  work  with  machinery  or  in 
close  proximity  thereto,  they  are  held 
not  entitled  to  compensation  for  injuries 
received  where  they  voluntarily  put 
themselves  in  a  position  to  be  injured 
thereby,  the  theory  being  that  they  there- 
by subject  themselves  to  dangers  not  in- 
cident to  the  work  which  they  are 
employed  to  do.97  An  accident  does  not 
arise  out  of  the  employment  if,  at  the 


94  Where  a  workman  in  the  employment 
of  ship   builders   was   oiling  a   machine   at 
which  he  was  working  with  a  brush  which 
was  not  the  one  belonging  to  the  machine, 
and  another  workman  came  up,  and,  claim- 
ing the  brush  as  his,  pulled  it  away  from 
the  claimant,  and  in  so  doing  injured  the 
latter's  hand,  the  injury  was  caused  by  acci- 
dent arising  out  of  and  in  the  course  of  the 
employment.     M'Intyre  v.  Rodger  (1903)   6 
Sc.  Sess.  Cas.  5th  series,  176,  41  Scot.  L.  R. 
107,  11  Scot.  L.  T.  467. 

An  employee  in  a  mine  who,  while  en- 
deavoring to  obtain  possession  of  a  hutch 
from  two  other  workmen  who  had  taken  it 
for  their  own  use,  suddenly  turned  his  head 
to  avoid  a  handful  of  dust  and  rubbish 
which  one  of  the  others  had  thrown  at  him, 
and  came  in  contact  with  the  side  of  the 
passage,  injuring  himself,  did  not  suffer  in- 
jury from  accident  arising  "out  of"  his  em- 
ployment. Baird  v.  Burley  [1908]  S.  C. 
545,  45  Scot.  L.  R.  415,  1  B.  W.  C.  C.  7. 

In  commenting  upon  this  case,  Lord  Dun- 
das,  in  Shaw  v.  MacFarlane  (1914)  52  Scot. 
L.  R.  236,  8  B.  W.  C.  C.  382,  said:  "In 
Burley's  Case  it  may  be  said  that  the  Lord 
Justice-Clerk's  opinion,  so  far  as  based  upon 
the  ground  that  'what  caused  the  injury 
was  not  in  any  sense  an  accident,  but  was 
a  fault  by  a  wrongdoer  who  was  acting  in 
a  wilful  and  unjustifiable  manner,'  cannot, 
looking  to  the  subsequent  march  of  judicial 
decision,  now  be  supported  as  sound  law." 

95  As    where    a    salesman    and    collector 
while  riding  a  bicycle  in  pursuit  of  his  em- 
ployment   was    kicked    in    the    knee    by    a 
passing   horse.     M'Neice   v.   Singer   Sewing 
Mach.  Co.   [1911]   S.  C.  13,  48  Scot.  L.  R. 
15,  4  B.  W.  C.  C.  351. 

And  where  a  canvasser  and  collector  who 
with  the  knowledge  of  his  employer,  but 
not  at  his  direction,  rode  a  bicycle,  and  was 
struck  and  killed  by  a  tram  car.  Pierce  v. 
Provident  Clothing  &  Supply  Co.  [1911]  1 
K.  B.  (Eng.)  997,  80  L.  J.  K.  B.  N.  S.  831, 
104  L.  T.  N.  S.  473,  27  Times  L.  R.  299,  55 
Sol.  Jo.  363,  4  B.  W.  C.  C.  242. 

In  Greene  v.  Shaw  [1912]  1  I.  R.  480 
[1912]  W.  C.  Rep.  25,  46  Ir.  Law  Times,  18, 
5  B.  W.  C.  C.  573,  it  was  held  that  a  herds- 
man who  in  going  from  one  farm  to  an- 
other, upon  both  of  which  he  was  employed, 
used  a  bicycle,  and  was  injured  while  so 
riding,  was  not  injured  by  accident  arising 
out  of  his  employment.  Pierce  v.  Providence 
Clothing  &  Supply  Co.  (Eng.)  was  distin- 
guished upon  the  ground  that  in  the  latter 
L.R.A.1916A. 


case  the  workman  was  continually  exposed 
to  the  danger  of  the  road,  while  in  the 
Greene  Case  he  was  obliged  to  go  over  the 
road  but  once  or  twice  a  day,  and  conse- 
quently the  risk  incurred  by  the  workman 
was  no  greater  than  that  incurred  by  many 
other  persons  using  the  street.  The  decision 
in  this  case  cannot  be  said  to  be  very  satis- 
factory. All  of  the  judges  delivered  judg- 
ment, and  each  referred  to  the  case  of 
Kitchenham  v.  The  Johannesburg  [1911] 
A.  C.  (Eng.)  417,  27  Times  L.  R.  504,  80 
L.  J.  K.  B.  N.  S.  1102,  105  L.  T.  N.  S.  118,  55 
Sol.  Jo.  599,  4  B.  W.  C.  C.  311,  which  was 
a  case  of  a  seaman  who  had  gone  on  shore 
with  leave,  and  while  returning  to  his  ship 
fell  from  the  wharf  and  was  drowned.  It 
did  not  appear  that  he  had  reached  the 
gangway.  The  Lord  Chancellor  took  the 
view  that  in  the  case  of  a  seaman  falling 
from  a  wharf  while  walking  to  his  ship, 
the  falling  into  the  water  was  a  risk  com- 
mon to  everyone.  If  the  Kitchenham  Case 
(Eng.)  is  controlling  on  the  facts  shown 
in  Greene  v.  Shaw  (Ir.)  it  would  also  seem 
tc  be  controlling  in  the  case  of  Pierce  v. 
Providence  Clothing  &  Supply  Co.  (Eng.) 

96  A  workman  who  had  been  engaged  to 
load  a  van,  and  was  promised  employment 
in  unloading  it  if  he  was  at  the  place  of 
unloading  in  time,  was  not  in  the  employ- 
ment while  riding  on  his  bicycle  from  one 
place  to  the  other.  Perry  v.  Anglo-Ameri- 
can Decorating  Co.  (1910)  3  B.  W.  C.  C. 
(Eng.)  310. 

A  workman  riding  a  bicycle  to  his  home 
after  his  work  has  been  completed  is  not 
within  the  employment,  although  the  bi- 
cycle is  furnished  to  him  by  the  employers 
for  use  in  his  work.  Edwards  v.  Wingnam 
Agri.  Implements  Co.  [1913]  3  K.  B.  (Eng.) 
596,  82  L.  J.  K.  B.  N.  S.  998,  109  L.  T.  N.  S. 
50,  [1913]  W.  N.  221,  57  Sol.  Jo.  701,  [1913] 
W.  C.  &  Ins.  Rep.  642,  6  B.  W.  C.  C.  511. 
The  court  pointed  out  that  the  fact  that 
the  employer  permitted  the  workman  to 
ride  the  bicycle  home  did  not  render  him  in 
the  employment. 

Employers  are  not  liable  for  compensa- 
tion for  the  death  of  a  workman  which 
occurred  while  he  was  riding  on  a  bicycle, 
due  to  the  collapse  of  the  bicycle,  where 
the  use  of  such  a  vehicle  was  not  necessary 
to  the  business,  and  was  not  known  to  or 
acquiesced  in  by  the  employers,  and  the 
journey  in  the  course  of  which  the  accident 
happened  was  undertaken  by  him  for  his 
own  purposes,  rather  than  for  the  business 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


49 


time,  the  workman  is  arrogating  to  him- 
self duties  which  he  was  neither  engaged 
nor  entitled  to  perform.98  But  the 
courts  are  inclined  not  to  be  too  severe 
upon  workmen  who  are  injured  by  at- 
tempts to  further  the  master's  business, 
although  the  attempt  is  in  a  line  some- 


what outside  the  precise  scope  of  the  em- 
ployment." 

Injuries  received  while  workmen  other 
than  train  employees  are  attempting  to 
mount  or  get  off  moving  trains  or  other 
vehicles  do  not  arise  out  of  the  employ- 
ment.1 But  a  different  rule  would  prob- 


of  the  employer.  Butt  v.  Provident  Cloth- 
ing &  Supply  Co.  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  119,  6  B.  W.  C.  C.  18. 

97  An  assistant  porter  in  a  hospital,  who 
attempts   to   dust   the   lift    (which   he   has 
never  been  told  to  do),  and  is  injured  while  i 
so  doing,  is  not  injured  by  accident  arising  ] 
out  of  and  in  the  course  of  the  employment. 
Whiteman  v.  Clifden   [1913]   W.  C.  &  Ins. 
Rep.  (Eng.)  126,  6  B.  W.  C.  C.  49. 

A  boy  sixteen  years  of  age,  employed  as 
a  box  minder  in  a  woolen  mill,  who,  al- 
though he  knew  it  was  his  duty  if  anything 
went  wrong  with  the  warps  to  report  the 
matter  to  the  foreman,  undertook  to  tighten 
the  warp  himself,  and  while  so  doing  in- 
jured his  finger,  did  not  suffer  accident  by 
injury  arising  out  of  the  employment.  Mc- 
Cabe  v.  North  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  522,  109  L.  T.  N.  S.  369,  6  B.  W.  C. 
C.  504. 

Where  a  lad  had  no  duties  to  perform 
within  the  fencing  of  machinery  while  the 
machinery  is  in  motion,  but  for  some  un- 
known reason  went  within  the  fence  while 
the  machinery  was  in  motion,  and  was 
killed,  the  accident  did  not  arise  out  of  the 
employment.  Smith  v.  Stanton  Ironworks 
Co.  Collieries  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  186,  6  B.  W.  C.  C.  239. 

An  employee  who  is  injured  while  at- 
tempting to  use  machinery  to  stack  sacks 
of  flour,  which  he  was  employed  to  stack 
by  hand,  is  not  injured  by  accident  arising 
out  of  and  in  the  course  of  his  employment. 
Plumb  v.  Cobden  Flour  Mills  Co.  [1914]  A. 
C.  (Eng.)  62,  83  L.  J.  K.  B.  N.  S.  197,  109 
L.  T.  N.  S.  759,  30  Times  L.  R.  174,  58  Sol. 
Jo.  184,  [1913]  W.  N.  367,  [1914]  W.  C. 
&  Ins.  Rep.  49,  51  Scot.  L.  R.  861,  7  B.  W. 
C.  C.  1,  Ann.  Cas.  1914B,  495,  affirming 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  209,  108 
L.  T.  N.  S.  161,  29  Times  L.  R.  232,  57  Sol. 
Jo.  264,  6  B.  W.  C.  C.  245. 

Where  a  boy  employed  in  a  soap  factory 
goes  outside  of  the  sphere  of  his  employ- 
ment to  an  obviously  dangerous  place  near 
machinery,  and  is  injured,  such  injury  does 
not  arise  out  of  and  in  the  course  of  the 
employment.  Davies  v.  Crown  Perfumery 
Co.  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  484,  6 
B.  W.  C.  C.  649. 

An  injury  received  while  the  applicant 
was  working  or  meddling  with  a  machine 
with  which  he  had  no  work  to  perform  was 
not  from  accident  arising  "out  of  and 
in  the  course  of"  the  employment.  Cron- 
in  v.  Silver  (1911)  4  B.  W.  C.  C.  (Eng.) 
221. 

If  it  was  no  part  of  the  applicant's  duty 
to  start  an  engine,  she  was  not  entitled  to 
compensation  for  injuries  received  while 
attempting  to  start  it.  Losh  v.  Evans 
L.R.A.1916A. 


(1903)  51  Week.  Rep.  (Eng.)  243,  19  Times 
L.  R.  142. 

98  Viscount  Haldane,  L.  C.,  in   Plumb  v. 
Cobden  Flour  Mills  Co.  (Eng.)  supra,  quot- 
ing from  his  own  prior  decision  in  Kerr  v. 
Baird   [1911]  S.  C.  701,  48  Scot.  L.  R.  646. 
4  B.  W.  C.   C.  397,  where  a  miner  fired  a 
shot  in  violation  of  the  rules  of  the  mine. 

99  A  boy  employed  in  a  boot  factory,  who 
was  directed  to  take  an  insole  down  stairs 
to  have  it  remolded,  and  in  the  absence  of 
the   operator   of   the   molding   machine   at- 
tempted to  remold  it  himself,  and  was  in- 
jured,   is    entitled   to   compensation    where 
he    had    not    been    expressly    forbidden    to 
touch  the  molding  machine.    Tobin  v.  Hearn 
[1910]  2  I.  R.  639,  44  Ir.  Law  Times,  197. 

A  workman  injured  while  cleaning  a  part 
of  the  machinery  that  it  was  not  his  duty 
to  clean,  suffered  an  accident  by  injury 
arising  out  of  and  in  the  course  of  the  em- 
ployment, where  he  was  not  expressly  for- 
bidden to  clean  it.  Greer  v.  Thompson 
[1912]  W.  C.  Rep.  272,  46  Ir.  Law  Times. 
89,  5  B.  W.  C.  C.  586.  The  employer's 
agent  admitted  that  the  act,  "was  done 
for  the  benefit  of  all  concerned." 

1  As  where  a  workman  ignored  warnings 
and  attempted  to  climb  onto  a  moving 
traction  engine.  McKeown  v.  McMurray 
(1911)  45  Ir.  Law  Times,  190. 

A  messenger  who  had  been  provided  by 
his  employers  with  money  to  pay  his  fare, 
and  was  injured  while  attempting  to  board 
a  tram-car  moving  at  the  rate  of  5  miles  an 
hour,  without  invitation  and  contrary  to 
the  notice  on  the  car,  was  not  injured  by 
accident  arising  out  of  and  in  the  course  of 
his  employment.  Symon  v.  Wemyss  Coal 
Co.  [1912]  S.  C.  1239,  49  Scot.  L.  R.  921, 
6  B.  W.  C.  C.  298. 

An  injury  to  a  workman  received  in  at- 
tempting to  jump  off  a  train  before  it  had 
stopped  did  not  arise  out  of  the  employ- 
ment, and  he  is  not  entitled  to  compensa- 
tion. Price  v.  Tredegar  Iron  &  Coal  Co. 
[1914]  W.  N.  (Eng.)  257,  30  Times  L.  R. 
583,  58  Sol.  Jo.  632,  137  L.  T.  Jo.  180, 
[1914]  W.  C.  &  Ins.  Rep.  295,  111  L.  T.  N.  S. 
688,  7  B.  W.  C.  C.  387. 

A  workman  required  to  travel  by  train  is 
outside  of  the  scope  of  his  employment  in 
attempting  to  mount  the  train  while  in 
motion,  although  it  was  necessary  for  him 
to  take  that  particular  train  in  order  to 
keep  an  appointment  made  for  him  by  his 
employers.  Jibb  v.  Chadwick  [1915]  2  K. 
B.  (Eng.)  94,  31  Times  L.  R.  185,  [1915] 
W.  N.  52,  8  B.  W.  C.  C.  152,  Lord  Cozens- 
Hardy,  M.  R.,  and  Swinfen  Eady,  L.  J., 
pointed  out  that  if  it  was  his  duty  to  take 
that  train  in  order  to  keep  his  appointment 
with  his  employers,  it  was  also  his  duty  to 


50 


WORKMEN'S  COMPENSATION. 


ably  prevail  in  the  case  of  train  em- 
ployees, and  recovery  has  been  allowed 
in  some  cases  of  this  character.2 

A  servant  does  not  necessarily  cease 
to  be  in  the  course  of  his  employment 
because  he  takes  a  wrong  or  dangerous 
method  of  doing  what  might  be  done 
safely.8  So  an  injury  to  a  window 
cleaner  in  falling  off  a  ledge  which  con- 
nected two  windows,  along  which  he  at- 


tempted to  climb  from  one  window  to 
the  other,  instead  of  going  through  the 
room  into  which  the  windows  opened, 
arises  out  of  the  employment.4  A  re- 
covery was  also  sustained  in  another 
case  in  which  the  general  situation  was 
similar.5 

But  where  the  workman's  act  subjects 
him  to  a  known  and  imminent  risk  to 
which  ordinarily  he  is  not  subjected,  an 


be  at  the  station  in  time  to  take  such 
train  in  a  proper  manner;  and  it  was  also 
pointed  out  that  there  was  nothing  in  the 
evidence  to  show  that  his  employment  had 
prevented  him  from  being  at  the  station  in 
proper  time. 

2  As  where  a  brakeman  fell  while  trying 
to    climb    from    a    wagon    to   a    brakesvan, 
with  a  view  to  using  the  steps  on  the  van 
to  descend  to  the  ground,  while  the  train 
was  slowly  passing  a  set  of  points.     Evans 
v.  Astley  [1911]  A.  C.  (Eng.)  674,  80  L.  J. 
K.  B.  N.  S.  1177,  105  L.  T.  N.  S.  385,  27 
Times  L.  R.  557,  4  B.  W.  C.  C.  319. 

A  railroad  porter  who  jumped  on  a 
passing  van  so  as  to  be  ready  to  remove 
luggage  as  quickly  as  possible,  as  was  his 
duty,  was  not  acting  outside  of  his  em- 
ployment, although  jumping  on  trains  by 
porters  had  been  strictly  prohibited,  and  he 
had  also  been  warned  against  the  practice. 
M'William  v.  Great  North  of  Scotland  R. 
Co.  [1914]  S.  C.  453,  (1914)  1  Scot.  L.  T. 
294,  51  Scot.  L.  R.  414,  7  B.  W.  C.  C.  875. 
Lord  Dundas  said:  "The  indiscretion  of 
this  lad  in  jumping  on  the  footboard — 
prompted  apparently  by  overzeal  'in  order 
to  be  ready  to  remove  the  luggage  as  quick- 
ly as  possible  when  the  train  stopped'— 
could  not,  I  think,  be  held  to  amount  to 
departure  from  his  proper  sphere  of  ser- 
vice. He  was  performing  his  duty  in  an 
indiscreet  and  wrong  manner,  but  still  he 
was  performing  it." 

3  Durham   v.   Brown   Bros.    (1898)    1    Sc. 
Sess.   Cas.  5th  series,  279,  36   Scot.  L.  R. 
190,  6  Scot.  L.  T.  239,  per  Lord  McLaren. 

A  workman  who,  while  doing  an  act 
which  is  part  of  his  duty,  meets  with  an 
accident  to  which  he  is  more  exposed  than 
persons  not  so  engaged,  is — or  in  case  of 
death  his  dependents  are — entitled  to  com- 
pensation from  the  employer,  although  the 
act  is  done  negligently  or  contrary  to  rule. 
Williams  v.  Llandudno  Coaching  &  Car- 
riage Co.  [1915]  2  K.  B.  (Eng.)  101,  84 
L.  J.  K.  B.  N.  S.  655,  [1915]  W.  C.  &  Ins. 
Rep.  91,  [1915]  W.  N.  52,  31  Times  L.  R. 
186,  59  Sol.  Jo.  286,  8  B.  W.  C.  C.  143. 

A  fatal  accident  to  a  workman  will  be 
deemed  to  have  occurred  in  the  course  of 
his  employment,  notwithstanding  that  at 
the  time  when  it  occurred  he  was  going 
from  one  place  of  his  employment  to  an- 
other by  a  forbidden  route,  which  was  more 
dangerous  than  another  route  which  was 
available  to  him.  McNicholas  v.  Dawson 
[1899]  1  Q.  B.  (Eng.)  773,  68  L.  J.  Q.  B. 
N.  S.  470,  47  Week.  Rep.  500.  The  court 
of  appeal  reversed  the  county  court  judge 
L.R.A.1916A. 


on  the  ground  that  his  holding  came  to  this, 
"that  if  a  workman  went  by  the  wrong  way 
from  one  point  of  his  employment  to  an- 
other, an  injury  happening  to  him  while 
doing  so  would  not  arise  out  of  and  in  the 
course  of  the  employment." 

A  workman  on  a  vessel  suffered  injury  by 
accident  arising  out  of  and  in  the  course 
of  his  employment,  where,  when  he  came  on 
deck  to  go  to  his  breakfast,  he  found  that 
the  vessel  was  a  little  way  from  the  quay 
side  and  the  gangway  removed,  and  he  at- 
tempted to  slip  down  a  rope  to  the  quay  as 
other  workman  had  done,  but  was  injured 
in  the  attempt.  Keyser  v.  Burdick  (1910) 
4  B.  W.  C.  C.  (Eng.)  87. 

A  seaman  engaged  in  unloading  fish  from 
a  trawler  by  means  of  an  inclined  board, 
who,  while  standing  on  the  board,  as  it  was 
his  duty  to  do,  was  told  to  get  off  so  that 
the  slant  of  the  board  might  be  increased, 
and,  instead  of  going  on  to  the  pontoon,  up- 
on which  the  fish  were  being  placed,  swung 
himself  on  to  the  stem  of  another  trawler 
alongside,  and  in  some  unexplained  manner 
fell  into  the  water,  and  died  as  a  result, 
suffered  an  accident  arising  out  of  and  in 
the  course  of  his  employment.  Gallant  v. 
The  Gabir  [1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
116,  108  L.  T.  N.  S.  50,  29  Times  L.  R.  198, 
57  Sol.  Jo.  225,  12  Asp.  Mar.  L.  Cas.  284, 
6  B.  W.  C.  C.  9.  Cozens-Hardy,  M.  R., 
said  that  he  met  the  accident  while  he  was 
doing  that  which  it  was  his  duty  and  which 
he  was  employed  to  do,  although  perhaps 
he  may  have  done  it  recklessly.  Buckley, 
L.  J.,  said:  "It  seems  to  me  the  dependent 
has  established,  as  of  course  she  must  es- 
tablish, a  prima  facie  case  that  this  was 
in  the  course  of  the  employment,  and  that 
the  risk  was  one  incidental  to  the  employ- 
ment, and  that  being  so,  the  employers  have 
not  discharged  the  onus  resting  upon 
them  by  saying  that  it  was  not  so  because 
the  man  was  larking  about,  or  had  left  the 
sphere  of  his  employment  and  had  gone  in 
for  gymnastics.  There  is  nothing  to  show 
that." 

*Bullworthy  v.  Glanfield  (1914)  7  B.  W. 
C.  C.  (Eng.)  191. 

5  Where  a  farm  bailiff  in  the  course  of  his 
duties  endeavored  to  reach  through  a  win- 
dow on  a  sill  of  which  he  stood,  for  a  key 
within  a  building,  instead  of  going  a  short 
distance  of  about  three  minutes'  walk, 
where  he  could  have  procured  a  key  to  the 
door,  the  accident  was  held  to  arise  out  of 
and  in  the  course  of  the  deceased's  employ- 
ment, and  the  mere  fact  that  he  endeavored 
to  discharge  his  duty  by  taking  a  short  cut 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


51 


injury  resulting  therefrom  will  be  held 
not  to.  arise  "out  of"  the  employment.6 
This  principle  is  particularly  applicable 
where  the  workman  walks  along  a  rail- 
way line  when  it  is  not  necessary.7 
The  fact  that  the  way  by  which  the 


workman  leaves  his  place  of  work  is  dan- 
gerous does  not  deprive  him  or  his  de- 
pendents of  compensation,  if  no  other 
way  is  provided  or  possible.8  Where  a 
workman  in  a  mine  loses  his  way,  and 
proceeds  along  a  dangerous  road,  and  is 


did  not  deprive  his  dependents  of  the  right 
to  compensation.  Pepper  v.  Sayer  [1914] 
3  K.  B.  (Eng.)  994,  30  Times  L.  R.  621, 
[1914]  W.  C.  &  Ins.  Rep.  423,  83  L.  J.  K. 

B.  N.  S.  1756,  111  L.  T.  N.  S.  708,  58  Sol.  Jo. 
669,  [1914]  W.  N.  291,  7  B.  W.  C.  C.  616. 

«  The  finding  of  the  sheriff  substitute  that 
the  accident  did  not  arise  "out  of  and  in 
the  course  of"  the  employment  will  be  sus- 
tained where  the  evidence  shows  that  the 
deceased,  a  miner,  in  making  his  way  out 
of  the  pit  neglected  the  proper  and  recog- 
nized road,  and  took  a  way  which  was  not 
a  made  path,  but  which  had  been  used  oc- 
casionally by  a  number  of  the  workmen. 
Hendry  v.  United  Collieries  [1910]  S.  C. 
709,  47  Scot.  L.  R.  635,  3  B.  W.  C.  C.  567. 
Lord  Dunedin  said:  "Where  there  is  a  per- 
fectly proper  and  recognized  road  out  of 
premises,  it  is  impossible  to  say  that  a 
man  is  in  the  course  of  his  employment  if 
he  neglects  that  road  and  goes  by  some 
other  means  of  exit  which  in  point  of  fact 
is  really  no  road  at  all." 

A  workman  employed  by  a  farmer  who 
owned  land  on  either  side  of  a  river  was  not 
in  the  course  of  his  employment  in  attempt- 
ing to  swim  across  the  river,  instead  of  go- 
ing some  distance  to  a  bridge  by  which  the 
river  could  have  been  crossed  in  safety. 
Guilfoyle  v.  Fennessy  [1913]  W.  C.  &  Ins. 
Rep.  228,  47  Ir.  Law  Times,  19,  6  B.  W.  C. 

C.  453. 

A  workman  employed  in  scaling  boilers 
on  a  ship  did  not  suffer  injury  by  accident 
arising  out  of  the  employment,  where  the 
injury  was  received  when  he  was  passing 
through  a  dangerous  area  which  had  been 
roped  off,  and  through  which  it  was  not  nec- 
essary for  him  to  go  in  reaching  the  ship. 
Murray  v.  Allen  Bros.  [1913]  W.  C.  &  Ins. 
Rep.  (Eng.)  193,  6  B.  W.  C.  C.  215. 

The  act  of  a  laborer  engaged  in  work  on 
a  vessel  in  passing  the  gangway,  and  going 
further  than  he  was  required  to  do  in  order 
to  go  on  board  by  the  proper  means  pro- 
vided, and  in  trying  to  jump  on  board, 
which  he  had  been  told  not  to  do,  is  not  in 
the  course  of  his  employment.  Martin  v. 
Fullerton  &  Co.  [1908]  S.  C.  1030,  45  Scot. 
L.  R.  812,  1  B.  W.  C.  C.  168. 

Compensation  is  not  recoverable  for  in- 
juries received  when  a  workman's  foot  was 
pierced  by  a  spike  on  top  of  a  railing, 
which  he  undertook  to  scale  in  order  to 
enter  a  church  through  a  window,  which 
he  was  endeavoring  to  enter  to  begin  his 
work.  Gibson  v.  Wilson  (1901)  3  Sc.  Sess. 
Cas.  5th  series,  661,  36  Scot.  L.  R.  450,  8 
Scot.  L.  T.  497. 

7  Where  a  workman  in  the  employ  of  a 
railroad  took  a  short  cut  along  the  rail- 
way line,  instead  of  going  around  by  the 
road,  and  was  injured,  no  compensation  is 
L.R.A.1936A. 


recoverable.  M'Laren  v.  Caledonian  R.  Co. 
[1911]  S.  C.  1075,  48  Scot.  L.  R.  885, 
5  B.  W.  C.  C.  492.  The  Lord  President 
said:  "I  think  a  man  who,  instead  of  walk- 
ing along  the  public  road,  which  is  the 
natural  way  to  go,  chooses  to  take  a  short 
cut  for  himself  along  a  railway  line,  where 
the  path  is  so  near  to  the  rails  that  he  is 
liable  to  be  knocked  down  by  a  passing 
engine,  does  increase  the  risks,  and  that  if 
something  happens  to  him  in  that  position 
the  accident  is  not  one  which  arises  out  of 
his  employment." 

Where  a  workman  employed  at  a  coal 
mine,  proposing  to  go  home  by  crossing 
a  railway  siding  on  the  premises  of  the 
mine  owners,  and  by  trespassing  along  a 
railway,  was  injured  while  crossing  the 
siding,  and  there  were  two  exits  provided 
for  leaving  the  mine,  neither  of  which 
crossed  the  siding,  the  accident  did  not 
arise  "out  of  and  in  the  course  of  the  em- 
ployment" of  the  workman!  Haley  v.  Unit- 
ed Collieries  (1906-7)  S.  C.  (Scot.) '214. 

A  workman  who,  upon  being  required  to 
cross  railway  metals,  crossed  at  a  point 
where  there  was  boarding  for  crossing  lug- 
gage, instead  of  taking  a  foot  bridge,  as 
passengers  were  required  to  do,  subjected 
himself  to  additional  risk,  and  the  employer 
is  not  liable  for  injuries  received  by  the 
workman  while  so  crossing  the  metal,  not- 
withstanding a  large  number  of  passengers 
did  cross  at  the  luggage  crossing.  Pritch- 
ard  v.  Torkington  [1914]  58  Sol.  Jo.  (Eng.) 
739,  7  B.  W.  C.  C.  719. 

A  carter  who  left  his  horse  and  cart  at 
a  station  and  went  up  on  an  embankment 
and  along  a  railway  line  where  he  had  no 
duty  whatsoever,  and  was  struck  by  a  train, 
and  knocked  down  and  killed,  did  not  suffer 
injury  by  accident  arising  out  of  and  in 
the  course  of  his  employment.  Morris  v. 
Rowbotham  (1915)  8  B.  W.  C.  C.  (Eng.) 
157. 

8  A  workman  engaged  in  loading  a  vessel, 
who,  after  his  day's  work  is  done  and  he  is 
leaving  the  vessel  by  means  of  a  ladder  on 
which  one  end  of  a  plank  is  resting,  the 
other  resting  on  the  vessel,  slips  and  falls 
from  the  ladder,  suffers  an  injury  by  acci- 
dent arising  out  of  and  in  the  course  of  his 
employment.  Webber  v.  Wansbrough  Paper 
Co.  (1914;  H.  L.)  137  L.  T.  Jo.  (Eng.)  237, 
[1914]  W.  N.  290,  111  L.  T.  N.  S.  658,  30 
Times  L.  R.  615,  58  Sol.  Jo.  685,  7  B.  W. 
C.  C.  795,  reversing  the  court  of  appeal 
[1913]  3  K.  B.  (Eng.)  615,  82  L.  J.  K.  B. 
N.  S.  1058,  109  L.  T.  N.  S.  129,  29  Times 
L.  R.  704,  [1913]  W.  N.  236,  6  B.  W.  C.  C. 
583. 

Where  a  deceased  workman  lived  on  one 
side  of  a  river,  and  his  employer  on  the 
other,  and  the  only  means  of  crossing  the 


52 


WORKMEN'S  COMPENSATION. 


injured,  such  injury   has  been   held   to 
arise  out  of  the  employment.9 

If  the  act  which  caused  the  injury  was 
within  the  scope  of  the  servant's  em- 
ployment, the  mere  fact  that  he  had 
been  expressly  forbidden  to  do  that  act 
will  not  necessarily  be  fatal  to  his  claim. 
There  have  been  great  difficulty  and 
much  conflict  of  opinion  in  applying  this 
principle.  Frequently  the  disobedience 
to  a  command  amounts  to  "serious  and 
wilful  misconduct,"  but  under  §  1,  subs. 
3,  that  factor  is  disregarded  where  the 
injury  "results  in  death  or  serious  and 
permanent  disablement,"  and  in  any 
event  does  not  affect  the  question  here 
involved,  namely,  whether  the  injury 
arose  out  of  and  in  the  course  of  the 
employment.10 


The  essential  point  to  be  determined 
is  whether  the  servant  was  actually  do- 
ing the  work  he  was  employed  to  do,  or 
whether  he  was  doing  something  sub- 
stantially different.  In  the  former  case, 
numerous  decisions  support  the  view 
that  mere  disobedience  to  orders  does  not 
take  him  outside  the  statute.  In  a  lead- 
ing case  taking  this  view,  a  workman 
whose  duty  it  was  to  oil  machinery  was 
killed  while  attempting,  contrary  to  or- 
ders, to  oil  it  while  it  was  in  motion.11 
In  such  a  case  it  is  plain  that  the  work- 
man was  actually  doing  the  work  which 
he  was  employed  to  do.  In  another  case 
a  boy  sat  down  to  do  his  work,  contrary 
to  express  orders.12  In  yet  another  case, 
a  workman  forbidden  to  touch  machinery 
attempted  to  replace  the  belt,  which  it 


river  was  by  use  of  a  boat,  and  the  work- 
man fell  out  of  the  boat  and  was  drowned 
as  he  was  crossing  in  the  usual  manner,  his 
death  was  caused  by  accident  arising  out 
of  and  in  the  course  of  the  employment. 
Nole  v.  Wadworth  [1913]  W.  C.  &  Ins. 
Rep.  (Eng.)  160,  6  B.  W.  C.  C.  129. 

A  farm  laborer  employed  on  an  island 
off  the  mainland,  who  was  permitted  by  his 
employer  to  go  to  his  home  on  the  main- 
land every  Saturday  night  and  return  Mon- 
day morning,  and  who  was  injured  while 
crossing  to  the  island  in  a  boat,  as  was 
customarily  done,  suffered  an  injury  by 
accident  within  the  meaning  of  the  statute. 
Richards  v.  Morris,  [1915]  1  K.  B.  (Eng.) 
221,  84  L.  J.  K.  B.  N.  S.  621,  110  L.  T.  N.  S. 
496,  [1914]  W.  C.  &  Ins.  Rep.  116,  7  B.  W. 
C.  C.  130. 

An  arbitrator  is  not  precluded  from  find- 
ing that  an  accident  arose  out  of  and  in  the 
course  of  the  employment  because  the  work- 
man when  injured  was  leaving  the  premises 
by  a  route  other  than  the  customary  one, 
where  there  was  no  express  order  forbid- 
ding the  use  of  such  route,  and  other  em- 
ployees customarily  used  it  M'Kee  v.  Great 
Northern  R.  Co.  (1908)  42  Ir.  Law  Times, 
132,  1  B.  W.  C.  C  165. 

9  Where  a  miner,  in  descending,  left  the 
cage  by  mistake  before  it  reached  the  level 
at  which  he  was  working,  and,  on  finding 
that  the  cage  had  resumed  its  descent,  went 
down  to  the  next  level,  and  for  some  unex- 
plained  reason   proceeded   600   or   700   feet 
along  a  road  leading  in  the  opposite  direc- 
tion from  the  road  leading  to  his  work,  and  j 
there  met  his  death  by  scalding  from  the 
exhaust  steam  from  a  pump.     Sneddon  v. 
Greenfield  Coal  &  Brick  Co.  [1909-10]  S.  C. 
362,  47  Scot.  L.  R.  337,  3  B.  W.  C.  C.  557 
(unavoidable  inference  was  that  he  had  lost 
his  way,  and  blundered  into  the  place  where 
he  was  injured). 

10  "We  have  the  difficulty  of  finding  out 
a   line   between   something   that   takes   the 
accident   entirely   out   of   the   employment, 
and   something   which   within   the   employ- 
ment  is   a   serious   and   wilful    misconduct 
which   leads  to   accident."     Fletcher   Moul- 
T.  R  A  1P16A 


ton,  L.  R.,  in  Watkins  v.  Guest    (1912)    5 

B.  W.  C.  C.  (Eng.)  307. 

11  Mawdsley  v.  West  Leigh  Colliery  Co. 
(1911)  5  B.  W.  C.  C.  (Eng.)  80. 

12  A   boy    engaged    in    rolling   ventilator 
tires,  who  knew  that  it  was  forbidden  to  sit 
down    while    engaged    in    the    work,    was 
nevertheless  not  out  of  his  employment  in 
sitting  down  to  his  work,  and  is  entitled  to 
compensation    for    injuries    received    while 
so  sitting,  although  the  accident  could  not 
have    happened    if    he    had    been    standing 
instead  of  sitting.     Chilton  v.  Blair   (1914) 
30  Times  L.  R.  (Eng.)  623,  58  Sol.  Jo.  669, 
7  B.  W.  C.  C.  607,  affirmed  by  the  House 
of      Lords      in       (1915),      31      Times      L. 
R.     (Eng.)   437,    [1915]    W.    N.    203,    8    B. 
W.  C.  C.  1.    In  the  court  of  appeal,  Cozens- 
Hardy,  M.  R.,  said:   "It  is  well  established 
that  a  workman  who  is  seriously  and  per- 
manently disabled  by  an  accident  may  re- 
cover  compensation    if    he    was    doing    the 
work  he  was  employed  to  do,  though  doing 
it   negligently   and   contrary   to   rules   laid 
down.     On  the  other  hand,  a  workman  can- 
not recover  compensation  if  he  was  not  do- 
ing the  work  he  was  employed  to  do,  but 
was   doing   something   substantially    differ- 
ent, although  intended  to  produce  the  same 
result.     An   instance   of   the    first   class   is 
where  a  man's  duty  was  to  oil  machinery, 
and  he  was  told  not  to  do  it  when  the  ma- 
chinery  was   in    motion.      He   did   it   while 
the  machinery  was  in  motion.    The  employ- 
er   was    held    liable,    although    there    was 
serious    and    wilful    misconduct.      An    in- 
stance of  the  second  class  is  found  in  the 
recent  case  of  the  House  of  Lords  of  Plumb 
v.    Cobden    Flour    Mills    Co.    [1914]    A.    C. 
(Eng.)   62,  83  L.  J.  K.  B.  N.  S.  197  [1914] 
W.  C.  &  Ins.  Rep.  48,  109  L.  T.  N.  S.  759, 
[1913]   W.  N.  367,  51   Scot.  L.  R.   861,  30 
Times  L.  R.  174,  58  Sol.  Jo.  184,  7  B.  W. 

C.  C.  1,  Ann.  Cas.  1914B,  495,  where  a  man 
whose    duty    it    was  to  pile  up   sacks   by 
hand,   took   upon   himself   to   rig   up    some 
machinery  to  lift  them.     It   was  held,  af- 
firming this  court,  that  he  had  taken  him- 
self   out    of    his    employment."      Swinfen- 
Eady,  L.  J.,  said:     "In  one  sense  the  injury 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


53 


was  necessary  for  him  to  do  in  order  to 
do  his  own  work.13  In  the  note  below 
there  will  be  found  numerous  other  cases 
applying  the  principle  that  mere  dis- 


obedience to  rules  does  not  take  the 
workman  outside  the  provision  of  the 
act.14  Of  course  if  the  forbidden  act  is 
done  in  an  honest  attempt  to  further 


was  caused  by  an  added  peril  which  the 
boy  took  upon  himself,  a  peril  which  his 
contract  of  service  did  not  oblige  him  to 
encounter ;  but,  on  the  other  hand,  the  added 
peril  did  not  take  the  boy  away  from  the 
very  work  he  was  engaged  to  perform;  it 
added  danger  to  the  performance  of  that 
work."  Pickford,  L.  J.,  said  that  the  boy 
"was  actually  turning  the  wheel  which  it 
was  his  duty  to  turn,  at  the  moment 
when  the  accident  happened,  but  he  was 
doing  it  while  sitting  down,  which  was  for- 
bidden, instead  of  standing  up,  as  was  his 
duty,  with  the  result  of  making  an  ordinary 
incident  of  his  work  a  danger  to  him  which 
it  would  not  otherwise  have  been,"  and  that 
this  was  "doing  his  work  in  a  wrong  way, 
but  not  doing  something  outside  the  sphere 
of  his  employment." 

13  Recovery  has  been  allowed  where  a 
carpenter,  part  of  whose  duty  was  to 
sharpen  his  tools  on  a  grindstone  rotated 
by  machinery,  had  been  forbidden  to  touch 
the  machinery,  and  was  injured  while  en- 
deavoring to  replace  the  belt,  which  started 
the  grindstone  after  it  had  slipped.  White- 
head  v.  Reader  [1901]  2  K.  B.  (Eng.)  48, 
84  L.  T.  N.  S.  514,  70  L.  J.  K.  B.  N.  S.  546, 
65  J.  P.  403,  49  Week.  Rep.  562,  17  Times 
L.  R.  387,  3  W.  C.  C.  40,  Romer,  L.  J.,  said: 
"I  am  not  able  to  gather  from  the  facts 
of  the  case  that  the  replacing  of  the  band 
was  an  act  on  the  workman's  part  so  re- 
mote from  his  ordinary  duties  that  it  could 
not  be  fairly  said  to  be  one  arising  out 
of  and  in  the  course  of  his  employment. 
It  is  not  the  case  of  a  workman  whose 
duties  in  no  way  bring  him  into  contact 
with  his  master's  machinery,  officiously  or 
for  his  own  purposes  meddling  with  that 
machinery  contrary  to  orders,  and  so  being 
injured." 

1*  Recovery  has  been  allowed  where  a 
workman  employed  to  inspect  scrap  iron 
consigned  to  his  employers  at  various  rail- 
road stations,  was  in  the  course  of  his 
duty,  returning  from  such  an  inspection 
to  the  warehouse,  and  attempted  to  cross, 
contrary  to  rules,  the  lines  of  the  railroad 
while  shunting  operations  were  in  progress, 
and  was  killed.  Sanderson  v.  Wright  (1914) 
110  L.  T.  N.  S.  (Eng.)  517,  30  Times  L.  R. 
279,  [1914]  W.  C.  &  Ins.  Rep.  177,  7  B.  W. 
C.  C.  141. 

And  where  a  workman  employed  by  the 
defendants  to  attend  to  a  steam  engine 
within  a  shed,  and  to  a  mortar  pan  outside 
the  shed,  worked  by  the  steam  engine  and 
used  to  grind  mortar  for  a  building,  was 
caught  in  a  revolving  shaft,  as  a  result  of 
his  entering  the  shed  by  a  door  which  he 
had  been  forbidden  to  use.  McNicholas  v. 
Dawson  [1899]  1  Q.  B.  (Eng.)  773,  68  L. 
J.  Q.  B.  N.  S.  470,  80  L.  T.  N.  S.  317,  47 
Week.  Rep.  500,  15  Times  L.  R.  242. 

And  where  a  collier  leaving  a  mine  in- 
duced a  boy  by  a  truck  to  wind  him  up 
by  a  shaft  which  was  used  only  for  pulling 
L.R.A.1916A. 


up  tools,  and  by  which  the  men  were  pro- 
hibited to  ascend,  the  boy  being  so  startled 
when  the  collier  reached  the  top  that  he  let 
go.  Douglas  v.  United  Mineral  Min.  Co. 
(1900)  2  W.  C.  C.  (Eng.)  15. 

And  where  the  second  engineer  lit  a  fire 
in  his  cabin  during  the  night  in  violation 
of  orders,  but  it  was  found  that  as  matter 
of  fact  some  fire  was  necessary  owing  to 
the  intense  cold.  Edmunds  v.  The  Peterston 
(1911)  28  Times  L.  R.  (Eng.)  18. 

A  collier  did  not  go  outside  of  his  em- 
ployment merely  because  he  went  from  a 
place  where  he  had  been  directed  to  work 
to  another  place  about  three  yards  distant 
where  he  was  injured,  although  he  had  been 
warned  not  to  work  at  the  latter  place  be- 
cause it  was  dangerous.  Jackson  v.  Denton 
Colliery  Co.  [1914]  W.  C.  &  Ins.  Rep.  (Eng.) 
94,  110  L.  T.  N.  S.  559,  7  B.  W.  C.  C.  92. 

The  fact  that  a  miner  goes  into  a  for- 
bidden area  to  get  a  pick  needed  by  him 
in  his  work  does  not  take  him  out  of  his 
employment.  Conway  v.  Pumpherston  Oil 
Co.  [1911]  S.  C.  660,  48  Scot.  L.  R.  632, 

4  B.  W.  C.  C.  392. 

It  may  be  found  that  an  injury  by  ac- 
cident to  a  groom  who  was  thrown  from 
a  horse  arose  "out  of  and  in  the  course  of"" 
his  employment,  although  there  was  evi- 
dence that  he  had  been  told  to  lead,  and  not 
to  ride,  the  horse.  Wright  v.  Scott  (1912> 

5  B.  W.  C.  C.  (Eng.)  431. 

The  engineer  of  a  trawler  who  was  in- 
jured when  it  was  blown  up  by  a  mine 
laid  by  an  enemy  is  entitled  to  compen- 
sation, although  the  shipper  had  taken  the 
wrong  course  and  entered  an  area  against 
which  he  had  been  warned,  where  at  the 
time  of  the  explosion  he  was  on  his  way 
to  warn  war  vessels  of  the  mines.  Risdale 
v.  The  Kilmarnock  [1915]  1  K.  B.  (Eng.) 
503,  84  L.  J.  K.  B.  N.  S.  298,  [1915]  W.  C. 

6  Ins.  Rep.   141,  112  L.  T.  N.   S.  439,  31 
Times  L.  R.  134,  59  Sol.  Jo.  143,  8  B.  W, 
C.  C.  7. 

A  pikeman  in  a  mine,  whose  duty  it  was 
to  light  the  fuses,  was  not  acting  outside 
the  scope  of  his  employment  in  firing 
charges  at  a  particular  time,  although  he 
had  been  told  by  the  fireman  in  charge  to 
await  further  instructions  before  firing 
them.  Corbett  v.  Pitt  (1915)  8  B.  W.  C.  C. 
(Eng.)  466. 

A  workman  is  not  necessarily  acting  out- 
side of  the  scope  of  his  employment  while 
he  is  acting  contrary  to  a  rule,  where  such 
rule  is  habitually  violated.  McGuire  v. 
Gabbott  (1915)  8  B.  W.  C.  C.  (Eng.)  555. 

A  collier  riding  to  his  work  on  a  train 
furnished  by  the  employer,  who,  as  it  ap- 
proached the  station,  got  out  on  the  foot- 
board contrary  to  orders,  and  was  pushed 
off,  was  injured  by  accident  arising  out  of 
and  in  the  course  of  his  employment.  Wat- 
kins  v.  Guest  [1912]  W.  C.  Rep.  (Eng.) 
150,  106  L.  T.  N.  S.  818,  5  B.  W.  C.  C.. 
307.  Cozens-Hardy,  M.  R.,  in  distinguish- 


54 


WORKMEN'S  COMPENSATION. 


the  master's  business,  the  case  affords  a 
better  opportunity  for  the  application  of 
the  principle  stated  above.15 

Where,  however,  the  prohibited  act  is 
one  lying  wholly  outside  of  the  sphere 


of  his  employment,  no  recovery  is  allow- 
able ; 16  as,  where  the  workman  goes  into 
a  place  where  he  has  been  forbidden  to 
go  and  where  his  duties  do  not  call 
him,17  or  where  he  is,  contrary  to  orders, 


ing  the  Barnes  Case  (Eng.)  (see  note  18, 
infra)  said  that  it  really  was  not  quite  the 
same  as  though  the  collier  had  ridden  all 
the  way  on  the  footboard.  This  decision 
seems  to  be  very  near  the  line.  Buckley, 
L.  J.,  dissenting,  said:  "It  seems  to  me 
that  this  man,  who  was  rightly  traveling 
by  train,  was  adding  by  his  own  conduct 
an  additional  peril  by  getting  out  of  the 
carriage  and  placing  himself  on  the  foot- 
board, ready  to  alight,  and*  then  in  some 
way, — we  do  not  know  how, — in  that  state 
•of  things,  he  slipped  and  fell  and  his  hands 
were  cut  off  by  the  moving  train.  That 
-was  a  risk  which  did  not  in  any  way,  to  my 
mind,  arise  out  of  his  employment;  it 
arose  from  the  fact  that  he,  rightly  travel- 
ing by  train  for  the  purpose  of  his  em- 
ployment, took  a  step  which  added  a  peril 
which  had  nothing  to  do  with  his  employ- 
ment at  all,  which  he  need  not  have  faced 
for  any  purpose  of  his  employment.  1 
think,  under  these  circumstances,  the  ac- 
cident did  not  arise  out  of  his  employment, 
ibut  arose  out  of  his  own  conduct  in  doing 
something  which  was  not  wanted  for  the 
purpose  of  his  employment,  and  was  not 
done  for  the  purpose  of  his  employment,  but 
which  was  a  peril  which  he  voluntarily 
added." 

Where  a  miner  was  injured  by  the  ex- 
plosion of  a  shot  by  a  shot  firer  after  the 
miner  had  coupled  the  charge  to  the  cable 
in  direct  violation  of  orders,  and  before  he 
could  get  to  a  place  of  safety,  it  was  held 
that  his  injury  did  not  arise  out  of  and  in 
the  course  of  his  employment.  Smith  v. 
Fife  Coal  Co.  [1913]  S.  C.  663,  [1913]  W. 
C.  &  Ins.  Rep.  343,  50  Scot.  L.  R.  455,  6 
B.  W.  C.  C.  435.  It  is  difficult  to  find 
reasonable  support  for  this  decision.  The 
miner  had  completed  the  connection,  and 
it  would  seem  that  the  only  cause  of  the 
accident  was  the  firing  of  the  shot  by  the 
shot  firer  before  the  miner  could  get  to  a 
place  of  safety.  It  certainly  could  be 
strenuously  argued,  were  the  action  at  com- 
mon law,  that  the  accident  was  the  result 
of  the  shot  firer's  act,  and  not  of  the  con- 
tributory negligence  of  the  miner  in  vio- 
lating the  orders,  and  this  seems  to  be 
the  view  of  Lord  Dundas,  for  in  writing 
the  opinion  he  says:  "He  [the  arbitrator] 
seems  to  me  to  have  approached  the  matter 
from  a  wrong  standpoint,  and  to  have  de-  j 
cided  it  having  regard  to  the  common-law 
rules  of  liability  and  contributory  negli- 
gence, which  are,  I  think,  wholly  beside 
this  question  under  the  workmen's  com- 
pensation act."  This  rule  apparently  places 
a  greater  burden  upon  the  workman  than 
he  would  have  to  bear  under  the  common 
law,  for  an  act  of  contributory  negligence 
not  sufficient  to  bar  a  recovery  at  common 
law  is  held  to  be  outside  of  the  employ- 
ment, under  the  act.  It  is  to  be  noted 
L.R.A.1916A. 


that  the  House  of  Lords,  in  a  decision 
rendered  after  the  above  criticism  was 
written,  held  that  the  essential  cause  of  the 
accident  was  not  the  unauthorized  assump- 
tion of  duty  by  the  miner,  but  the  pre- 
mature firing  of  the  shot,  and  that  the 
arbitrator's  finding  that  the  miner  was 
entitled  to  compensation  should  be  upheld. 
[1914]  A.  C.  (Eng.)  723,  83  L.  J.  P.  C.  N.  S. 
1359,  111  L.  T.  N.  S.  477,  [1914]  S.  C.  40, 
51  Scot.  L.  R.  496,  [1914]  W.  C.  &  Ins. 
Rep.  235,  30  Times  L.  R.  502,  58  Sol.  Jo. 
533,  [1914]  W.  N.  196,  7  B.  W.  C.  C.  253). 

15  Although  a  collier  in  going  into  a  dan- 
gerous working  in  disobedience  to  the  col- 
liery  special  rules,   and  against  the  warn- 
ings of  a  fireman  or  overlooker,  was  guilty 
of  "serious  and  wilful"  misconduct,  yet  if 
he  did  so  in  an  honest  attempt  to  further 
that  which  he  was  instructed  to  effect,  his 
dependents    may    secure    compensation    for 
his   death,    which    resulted    from    such    act. 
Harding    v.    Brynadu    Colliery    Co.    [1911] 
2  K.  B.  (Eng.)  747,  80  L.  J.  K.  B.  N.  S.  1052, 
105  L.  T.  N.  S.  55,  27  Times  L.  R.  500,  55 
Sol.  Jo.  599,  4  B.  W.  C.  C.  269. 

See  also  Whitehead  v.  Reader  (Eng.)  cited 
in  note  13,  supra. 

16  In  Kerr  v.  Baird   [1911]   S.  C.  701,  48 
Scot.  L.  R.  646,  4  B.  W.  C.  C.  397,  where 
a    miner    attempted    to    fire    a    shot    in    a 
mine,   which   it   was   not   his   duty   to   fire, 
the   Lord    President    said:      "I   think    it    is 
quite   clear   that  in  this  case  the   accident 
did  not  occur  whilst  the  injured  man  was 
performing   his   ordinary   work,   but   whilst 
he  was  arrogating  to  himself  duties  which 
he    was    neither    engaged    nor    entitled    to 
perform." 

In  Barnes  v.  Nunnery  Colliery  Co.  [1912] 
A.  C.  (Eng.)  44,  5  B.  W.  C.  C.  195,  Lord 
Atkinson  said:  "In  these  cases  under  the 
workmen's  compensation  act  a  distinction 
must,  I  think,  always  be  drawn  between 
the  doing  of  a  thing  recklessly  or  negli- 
gently which  the  workman  is  employed  to 
do,  and  the  doing  of  a  thing  altogether  out- 
side and  unconnected  with  his  employment. 
A  peril  which  arises  from  the  negligent  or 
reckless  manner  in  which  an  employee  does 
the  work  he  is  employed  to  do  may  well 
be  held  in  most  cases  rightly  to  be  a  risk 
incidental  to  his  employment.  Not  so  in 
the  other  case." 

17  No  recovery  is  allowable  where  a  girl 
engaged   in   passing   sheaves   undertook,   in 
disobedience   to   an   express   prohibition,   to 
step  across  the  opening  through  which  they 
were  fed,  merely  for  the  purpose  of  speak- 
ing to  a  friend,  and  without  any  necessity 
arising  out  of  the  work.    Callaghan  v.  Max- 
well (1900)  2  Sc.  Sess.  Cas.  5th  series,  420, 
37  Scot.  L.  R.  313,  7  Scot.  L.  T.  339. 

Where  a  brakeman  was  injured  by  jump- 
ing off  the  seat  of  a  lorry,  where  he  had 
been  expressly  forbidden  to  go,  and  where 


INJURY  ARISING  GUI'  OF  EMPLOYMENT. 


55 


riding  in  a  forbidden  conveyance,18  01  i  to    do    work    around    machinery    with 
where,  contrary  to  orders,  he  attempts    which  his  duties  have  no  connection.19 


he  had  no  duty  to  perform.     Revie  v.  Curu- 
ming  [1911]  S.  C.  1032,  48  Scot.  L.  R.  831. 

Where  a  workman  climbed  onto  a  tank 
to  eat  his  dinner,  contrary  to  orders.  Brice 
v.  Lloyd  [1909]  2  K.  B.  (Eng.)  804,  101 
L.  T.  N.  S.  472,  25  Times  L.  R.  759,  53  Sol. 
Jo.  744. 

Where  a  miner's  body  was  found  among 
the  debris  after  a  shot  had  been  fired  in  a 
place  where  he  had  been  forbidden  to  go, 
and  no  reason  was  shown  for  his  being 
there.  Traynor  v.  Addie  (1911)  48  Scot. 
L.  R.  820,  4  B.  W.  C.  C.  357. 

.Where  a  workman  engaged  to  dig  flints 
goes,  contrary  to  orders,  into  a  deep  trench. 
Parker  v.  Hambrook  [1912]  W.  N.  (Eng.) 
205,  107  L.  T.  N.  S.  249,  56  Sol.  Jo.  750, 
[1912]  W.  C.  Rep.  369,  5  B.  W.  C.  C.  608, 
Ann.  Cas.  1913C,  1. 

Where  a  miner  was  killed  at  a  place  in 
the  mine  where  he  had  been  positively  for- 
bidden to  go.  Tomlinson  v.  Garratts  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  416,  6  B.  W.  C.  C. 
489. 

Where  a  messenger  boy  employed  at  a 
goods  station  attempted  to  cross  the  track 
at  night  for  his  own  purposes  and  contrary 
to  orders,  and  was  struck  and  killed  by  a 
passing  engine.  McGrath  v.  London  &  N. 
W.  R.  Co.  [1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
198,  6  B.  W.  C.  C.  251. 

An  accident  caused  by  a  workman  going 
into  place  where  he  has  been  forbidden 
to  go  does  not  "arise  out  of"  the  employ- 
ment. Powell  v.  Lanarkshire  Steel  Co. 
(1904)  6  Sc.  Sess.  Cas.  5th  series  (Scot.) 
1039. 

A  miner  who,  after  he  had  been  sus- 
pended, was  directed  to  go  to  a  certain 
part  of  the  mine,  is  not  entitled  to  com- 
pensation for  injuries  while  remaining  in 
the  place  which  he  had  been  told  to  leave. 
Smith  v.  South  Normanton  Colliery  Co. 
[1903]  1  K.  B.  (Eng.)  204,  72  L.  J.  K.  B. 
N.  S.  76,  67  J.  P.  381,  51  Week.  Rep.  209, 
88  L.  T.  N.  S.  5,  19  Times  L.  R.  128. 

A  cook  on  a  trawler  was  not  acting  with- 
in the  course  of  his  employment  in  return- 
ing to  the  trawler  at  11  o'clock  at  night, 
where  the  undisputed  evidence  was  that  he 
had  been  forbidden  to  sleep  on  the  trawler 
at  night.  Griggs  v.  The  Gamecock  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  122,  6  B.  W.  C.  C. 
15. 

18  As  where  a  boy  at  work  in  a  colliery 
in  disobedience  to  orders  got  in  a  tub  that 
was  being  hauled  on  an  endless  chain. 
Barnes  v.  Nunnery  Colliery  Co.  [1910]  W. 
N.  (Eng.)  248,  45  L.  J.  N.  C.  757,  affirmed 
in  [1912]  A.  C.  (Eng.)  44,  81  L.  J.  K.  B. 
N.  S.  213,  105  L.  T.  N.  S.  961,  28  Times 
L.  R.  135,  56  Sol.  Jo.  159,  [1912]  W.  C. 
Rep.  90,  [1911]  W.  N.  251,  5  B.  W.  C.  C. 
195,  Earl  Loreburn,  L.  C.,  said:  "You  can- 
not say  that  this  boy  was  employed  to  be 
prudent  and  cautious,  and  therefore  deny 
him  compensation  if,  by  reason  of  his  want 
of  prudence  and  caution,  he  meets  with 
an  accidental  injury.  Nor  can  you  deny 
L.R.A.1916A. 


him  compensation  on  the  ground  only  that 
he  was  injured  through  breaking  rules.  But 
if  the  thing  he  does  imprudently  or  dis- 
obediently is  different  in  kind  from  any- 
thing he  was  required  or  expected  to  do, 
and  also  is  put  outside  the  range  of  his 
service  by  a  genuine  prohibition,  then  I 
should  say  that  the  accidental  injury  did 
not  arise  out  of  his  employment." 

Where  a  miner  is  injured  while  he  is 
riding  on  a  tub  in  violation  of  orders. 
Bates  v.  Mirfield  Coal  Co.  [1913]  W.  C. 
&  Ins.  Rep.  (Eng.)  180,  6  B.  W.  C.  C.  165. 

Where  a  brusher  in  a  mine,  in  violation 
of  a  known  rule,  jumper  in  a  hutch  that 
was  being  taken  to  the  bottom  of  the  mine. 
Kane  v.  Merry  [1911]  S.  C.  533,  48  Scot. 
L.  R.  430,  4  B.  W.  C.  C.  379. 

Where  a  collier  who,  in  going  from  one 
part  of  the  mine  to  another,  rode,  contrary 
to  orders,  on  the  coupling  between  two 
trams,  and  was  injured  while  so  riding. 
Powell  v.  Bryndu  Colliery  Co.  (1911)  5  B. 
W.  C.  C.  (Eng.)  124. 

Where  a  workman  tried  to  get  on  a  mov- 
ing train  contrary  to  orders  merely  to  get 
a  lift  home.  Pope  v.  Hill's  Plymouth  Co. 
(1910)  102  L.  T.  N.  S.  (Eng.)  632,  3  B.  W. 
C.  C.  339,  affirmed  in  (1912;  H.  L.)  105 
L.  T.  N.  S.  (Eng.)  675,  [1912]  W.  C.  Rep. 
15,  5  B.  W.  C.  C.  175. 

A  boy  employed  as  a  shunter  on  a  pri- 
vate line  of  railway  connected  with  some 
private  works,  whose  duty  it  was  to  keep 
a  lookout  by  walking  in  front  of  the  wag- 
ons as  they  were  being  shunted  or  moved, 
and  who  was  injured  while  riding  on  the 
wagon,  which  he  was  forbidden  to  do,  ex- 
posed himself  to  a  new  and  added  peril 
not  incident  to  his  employment  and  is  not 
entitled  to  compensation.  Herbert  v.  Fox 
[1915]  2  K.  B.  (Eng.)  81,  84  L.  J.  K.  B. 
N.  S.  670,  [1914]  W.  C.  &  Ins.  Rep.  154, 
[1914]  W.  N.  44,  59  Sol.  Jo.  249,  8  B.  W. 
C.  C.  94. 

A  message  boy  who,  in  using  a  hoist 
to  carry  him  to  the  third  floor  of  a  build- 
ing where  it  was  his  duty  to  go,  instead 
of  walking  up  the  stairs,  knowingly  vio- 
lates his  orders,  is  outside  the  course  of 
his  employment.  McDaid  v.  Steel  [1911] 
S.  C.  859,  48  Scot.  L.  R.  765,  4  B.  W.  C.  C. 
412. 

A  collier  may  be  found  to  have  been 
injured  by  accident  arising  out  of  and  in 
the  course  of  his  employment,  where  he 
received  the  injury  by  riding  on  a  tub, 
although  such  an  act  was  forbidden,  but 
there  was  no  evidence  that  the  colliers 
knew  of  the  prohibition,  and  the  fireman 
whose  duty  it  was  to  enforce  the  rules 
permitted  the  men  to  ride  on  the  tub  when 
they  could.  Richardson  v.  Denton  Colliery 
Co.  [1913]  W.  N.  (Eng.)  238,  [1913]  W.  C. 
&  Ins.  Rep.  554,  109  L.  T.  N.  S.  370,  6 
B.  W.  C.  C.  629. 

W  Where  a  person  employed  in  a  factory 
to  do  purely  unskilled  labor,  and  expressly 
forbidden  to  touch  any  of  the  machinery, 


56 


WORKMEN'S  COMPENSATION. 


A  servant  does  not  cease  to  be  in  the 
course  of  his  employment,  merely  be- 
cause he  is  not  actually  engaged  in  do- 
ing what  is  specially  prescribed  to  him, 
if,  in  the  course  of  his  employment,  an 
emergency  arises,  and,  without  deserting 
his  employment,  he  does  what  he  thinks 
necessary  for  the  purpose  of  advancing 
the  work  in  which  he  is  engaged  in  the 
interest  of  his  master.20  In  several  de- 


cisions it  has  been  held  that  a  workman 
injured  while  attempting  to  rescue  an- 
other workman  who  is  in  danger  is  en- 
titled to  compensation,  where  the  danger 
to  which  the  other  workman  is  subjected 
is  incurred  in  the  course  of  the  employ- 
i  ment.21    But  the  rule  is  otherwise  where 
I  the  dangerous  situation  does  not   arise 
out  of  and  in  the  course  of  the  employ- 
ment.    As,  where  an  employee,  goes  to 


was  injured  while  attempting,  in  violation 
of  such  orders,  to  clean  a  machine.  Lowe  v. 
Pearson  [1899]  1  Q.  B.  (Eng.)  261,  68 
L.  J.  Q.  B.  N.  S.  122,  47  Week.  Rep.  193, 
79  L.  T.  N.  S.  654,  15  Times  L.  R.  124. 

Where  a  boy  employed  to  piece  broken 
ends  of  yarn  is  injured  while  cleaning 
machinery,  which  he  had  been  forbidden 
to  do.  Naylor  v.  Musgrave  Spinning  Co. 
(1911)  4  B.  W.  C.  C.  (Eng.)  286. 

Where  a  driver  of  a  canal  boat  violated 
the  orders  of  his  employer,  and  attempted 
to  steer  the  boat,  and  was  drowned  while 
steering.  Whelan  v.  Moore  (1909)  43  Ir. 
Law  Times,  205  (the  desertion  of  another 
boatman  created  no  emergency  justifying 
the  disobedience). 

Where  a  baker  in  a  steam  bakery  was 
killed  while  starting  an  engine  which  he 
had  been  forbidden  to  start.  Marriott  v. 
Brett  (1911)  5  B.  W.  C.  C.  (Eng.)  145. 

Where  a  workman  who,  after  being 
warned  not  to  touch  a  switchboard,  delib- 
erately does  so,  and  is  injured.  Jenkinson 
v.  Harrison  (1911)  4  B.  W.  C.  C.  (Eng.) 
194. 

Where  a  liftman  who  was  forbidden  to 
oil  the  lift  was  injured  while  attempting 
to  oil  it.  Dougal  v.  Westbrook  [1913]  W. 
C.  &  Ins.  Rep.  (Eng.)  522,  6  B.  W.  C.  C. 
705. 

A  miner  who  attempts  to  convey  wood 
in  a  mine  by  means  of  a  wheel  brae  which 
he  had  been  forbidden  to  use,  and  is  fatally 
injured,  does  not  suffer  injury  by  accident 
arising  out  of  his  employment,  if  he  thereby 
exposes  himself  to  a  risk  which  his  ordi- 
nary employment  does  not  call  on  him  to 
face.  Burns  v.  Summerlee  Iron  Co.  [1913] 
S.  C.  227,  50  Scot.  L.  R.  164,  [1913]  W. 
C.  &  Ins.  Rep.  45,  6  B.  W.  C.  C.  320. 

An  accident  to  a  boy  while  he  is  play- 
ing with  certain  pinion  wheels  which  he 
has  been  forbidden  to  touch  does  not  arise 
"out  of  and  in  the  course  of"  his  employ- 
ment. Furniss  v.  Gartside  (1909)  3  B.  W. 
C.  C.  (Eng.)  411. 

A  workman  who,  contrary  to  orders,  at- 
tempts to  clean  machinery  while  it  is  in 
motion,  and  is  injured,  does  not  suffer 
injury  by  accident  arising  out  of  his  em- 
ployment. M'Diarmid  v.  Ogilvy  Bros. 
[1913]  W.  C.  &  Ins.  Rep.  537,  50  Scot. 
L.  R.  883,  6  B.  W.  C.  C.  878.  The  Lord 
President  said  that  the  mere  disregard  of 
the  prohibition  would  not  prevent  a  recov- 
ery, but  what  distinguished  this  case  from 
the  Mawdsley  Case  (note  11,  supra) 
was  the  fact  that  there  were  certain  pre- 
scribed times  for  cleaning  the  machinery, 
L.R.A.1936A. 


and  the  workman  was  trying  to  do  it  at 
some  other  time.  He  further  said:  "Now 
in  this  case  the  workman  had  no  general 
employment  to  clean  the  machine,  but  a 
special  employment  to  clean  the  machine 
for  an  hour  early  on  the  morning  of  Tues- 
day, and  an  hour  early  on  the  morning 
of  Friday,  when  special  preparations  were 
made.  What  I  wish  to  say  is  this,  that 
the  workman  could  be  under  no  mistake 
as  to  whether  he  was  doing  his  duty.  He 
could  not  think  he  was  doing  the  duty  of 
a  Tuesday  or  a  Friday  morning;  he  was 
doing  something  on  another  day  which  he 
knew  was  not  his  duty." 

20  Durham   v.  Brown   Bros.    (1898)    1   Sc. 
Sess.   Cas.   5th   series,   279,   36   Scot.   L.   R. 
190,  6  Scot.  L.  T.  239. 

Recovery  was  also  allowed  where  a  carter 
in  the  employment  of  a  railway  company 
was  injured  while  he  was  endeavoring  to 
stop  a  horse  which  had  suddenly  started 
off,  from  some  unexplained  cause,  with  the 
cart.  Devine  v.  Caledonian  R.  Co.  (1899) 

1  Sc.   Sess.  Cas.  5th  series,   1105,  36  Scot. 
L.  R.   877,  7   Scot.  L.  T.  99. 

In  Rees  v.  Thomas  [1899]  1  Q.  B.  (Eng.) 
1015,  68  L.  J.  Q.  B.  N.  S.  539,  47  Week. 
Rep.  504,  80  L.  T.  N.  S.  578,  15  Times 
L.  R.  301,  recovery  was  allowed  where  a 
fireman  employed  in  a  coal  mine  was,  in 
the  course  of  his  duty,  carrying  a  report 
of  the  state  of  the  mine  from  the  pit's 
mouth  to  the  office,  and  the  horse  drawing 
the  tramway  truck  in  which  he  was  riding 
ran  away,  and  in  endeavoring  to  stop  it 
he  fell  and  was  killed.  Lowe  v.  Pearson 
[1899]  1  Q.  B.  (Eng.)  261,  68  L.  J.  Q.  B. 
N.  S.  122,  47  Week.  Rep.  193,  79  L.  T. 
N.  S.  654,  15  Times  L.  R.  124,  was  distin- 
guished on  the  ground  that  the  act  there 
which  was  done  outside  the  scope  of  the 
servant's  employment  was  not  done  in  any 
emergency. 

Where  a  workman  employed  by  a  lion 
tamer  was  left  in  charge  of  the  cages  of 
I  lions,  and  was  injured  while  attempting 
to  get  a  lion  back  into  the  cage,  recovery 
was  allowed  upon  the  theory  that,  as  he 
had  been  left  in  charge,  he  might  properly 
attempt  to  drive  the  lion  back.  Hapelman 
v.  Poole  (1908)  25  Times  L.  R.  (Eng.)  155, 

2  B.  W.  C.  C.  48. 

21  Fatal    injuries    to    a    workman    while 
attempting  to  rescue  a  fellow  workman  who 
had  fallen  down  a  shaft  which   they  were 
engaged   in   cleaning  out  arose  out  of  and 
in   the   course   of   employment.      Matthews 
v.  Bedworth  Brick,  Tile  &  Timber  Co.  (1899; 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


57 


the  rescue  of  his  employer,  who  is  being 
attacked  by  a  gang  of  rowdies,  and  is 
stabbed  to  death,22  or  where  the  danger- 
ous situation  was  created  by  a  work- 
man indulging  in  horseplay.23 

The  mere  fact  that  a  workman  was  not 
actively  engaged  in  his  duties  will  not 


deprive  him  of  compensation.24  Thus 
compensation  will  not  be  denied  because 
at  the  time  of  the  injury  the  workman 
was  not  actively  engaged  in  his  work,  but 
was  awaiting  an  opportunity  to  begin 
it.25  So  compensation  is  recoverable 
where  a  workman  is  injured  while  going 


C.  C.)  106  L.  T.  Jo.  (Bug.)  485,  1  W.  C. 
C.  124. 

A  laborer  whose  duties  in  unloading  a 
vessel  do  not  require  him  to  go  upon  it 
does  not  go  out  of  his  employment  in 
volunteering  to  go  in  the  hold  to  rescue 
another  laborer  who  has  been  overcome  by 
gas.  London  &  E.  Shipping  Co.  v.  Brown 
(1905)  7  Sc.  Sess.  Cas.  5th  series,  (Scot.) 
488.  The  Lord  Justice  Clerk  said:  "I 
cannot  doubt  that,  in  a  sudden  emergency 
where  there  is  danger,  a  workman  does 
not  go  out  of  his  employment  if  he  en- 
deavors to  prevent  the  danger  from  tak- 
ing effect.  For  example,  if,  in  a  yard  where 
a  man  is  working,  a  horse  suddenly  runs 
off,  and  there  is  danger  to  others,  I  would 
hold  that,  if  the  man  did  his  best  to  stop 
the  horse,  and  met  with  an  injury,  he  suf- 
fered that  injury  in  the  course  of  his  em- 
ployment. It  would  be  a  right  thing  to 
do,  in  the  interest  of  the  safety  of  those 
in  the  yard,  and  therefore  in  the  interests 
of  his  master.  The  same  would  apply  to 
the  endeavor  to  sprag  a  runaway  wagon, 
which  might  cause  loss  of  life.  No  doubt 
this  case  is  somewhat  unusual,  and  the 
endeavor  was  made  to  liken  it  to  the  case 
of  persons  arriving  on  the  scene  of  a  disas- 
ter,  such  as  a  coal-pit  explosion,  and  de- 
liberately volunteering  to  join  a  rescue 
party,  and  who  therefore  could  be  held  not 
to  be  acting  as  employees,  but  solely  as 
individuals.  I  can  conceive  such  a  case, 
where  it  would  be  very  difficult  to  make 
the  act  apply;  but,  in  my  view,  any  such 
case  is  distinguishable  from  the  present  one. 
Here  the  deceased  was  at  the  work  that 
was  going  on.  Had  one  of  the  men  who 
was  with  him,  engaged  in  work  on  the  quay, 
come  suddenly  into  danger,  and  he  had 
instantly  endeavored  to  save  him,  I  could 
have  no  hesitation  in  saying  that  his  do- 
ing so  was  an  act  in  the  course  of  his 
employment.  I  do  not  feel  that  his  case 
falls  into  a  different  category  because  the 
man  he  tried  to  save  was  engaged  at  a 
different  department  of  the  same  work  in 
the  factory." 

An  employee  who  suffered  an  apoplectic 
seizure  was  not  outside  of  the  protection 
of  the  statute  merely  because  the  seizure 
resulted  from  overexertion  in  running  to 
the  place  of  an  accident  and  back  again, 
to  give  notice  by  telephone  of  such  acci- 
dent. Aitken  v.  Finlayson  [1914]  S.  C. 
770,  2  Scot.  L.  T.  27,  51  Scot.  L.  R.  653, 
[1914]  W.  C.  &  Ins.  Rep.  398,  7  B.  W. 
C.  C.  918. 

22  Collins   v.  Collins    [1907]   2   I.  R.    (Ir.) 
104. 

23  A  workman  is  not  injured  by  accident 
arising  out  of  his  employment,  where  the 
L.R.A.1936A. 


injury  is  incurred  in  attempting  to  rescue 
a  fellow  workman  who,  while  engaged  in 
hauling  a  bogie  across  a  public  street, 
indulged  in  some  horseplay  and  became 
in  danger  of  injury  by  the  bogie.  Mullen 
v.  Stewart  [1908]  S.  C.  (Scot.)  991,  1  B. 
W.  C.  C.  204.  Lord  Ardwall  said:  "M'Gin- 
lay  [the  workman  rescued]  had  improperly 
begun  to  play  with  a  rope  by  means  of 
which  another  squad  of  men  were  hauling 
a  bogie  from  the  north  to  the  south  side 
of  the  street,  and  he  had  fallen  across 
the  rope,  so  that  at  the  time  of  the  acci- 
dent M'G inlay  had  not  returned  to  his 
own  working  place.  He  was  not  engaged 
on  his  master's  work.  On  the  contrary, 
he  was  impeding  another  squad  of  men  in 
their  work,  and  he  was  in  no  different  posi- 
tion as  regards  the  respondents  than  he 
would  have  been  if  he  had  been  a  stranger 
who  had  fallen  in  the  street  in  front  of  a 
lorry  or  a  tramway  car.  And  it  is  obvious 
that  in  neither  of  these  cases  could  it  have 
been  said  of  Mullen,  if  he  had  tried  to 
rescue  M'G  inlay,  that  the  accident  arose 
out  of  and  in  the  course  of  his  employment." 

24  "As   Milton  tells   us,  'they  also   serve 
who  only  stand  and  wait.' "     Holmes,  L.  J., 
in  Sheehy  v.  Great  Southern  &  W.  R.  Co. 
[1913]   W.  C.  &  Ins.  Rep.  404,  47  Ir.  Law 
Times,   161,  6  B.  W.  C.  C.  927. 

Recovery  was  allowed  where  an  engineer 
was  run  down,  when  recrossing  a  track  to 
reach  his  engine  which  he  had  left  in  order 
to  ask  a  traffic  regulator  why  he  had  been 
ordered  to  take  it  to  a  certain  place.  Good- 
let  v.  Caledonian  R.  Co.  (1902)  4  Sc.  Sess. 
Cas.  5th  series,  986,  39  Scot.  L.  R.  759,  10 
Scot.  L.  T.  203. 

And  where  an  engineer  who,  after  being 
relieved  of  duty  when  his  engine  was  on 
a  siding,  walked  along  the  track  to  a  sta- 
tion, where  he  had  to  report  himself  as 
being  off  duty.  Todd  v.  Caledonian  R.  Co. 
(1899)  1  Sc.  Sess.  Cas.  5th  series,  1047, 
36  Scot.  L.  R.  784,  7  Scot.  L.  T.  85. 

25  An   injury   to   a   train   guard   who   fell 
off  a  buffer  stop  at  a  station  where  he  was 
obliged  to  wait  about  eight  hours  for  the 
train  upon  which  he  was  to  serve  as  guard 
may    be    found    to    be    caused    by    accident 
arising    out    of    the    employment.      Sheehy 
v.  Great  Southern  &  W.  R.  Co.  (Ir.)   supra. 
The  basis  of  the  decision  was  that  a  work- 
man   who    is    obliged    to    wait    at    a    place 
for    a    considerable    length    of    time    before 
his    active    duties    begin    must    be    allowed 
some  freedom  of  choice  as  to  the  particular 
place    in    which    he    will    spend    such    time. 

A  workman  who  was  instructed  to  get 
a  barge  at  a  wharf,  but,  upon  going  there, 
found  that  he  would  not  be  able  to  get 
it  for  some  time  because  of  the  condition 


58 


WORKMEN'S  COMPENSATION. 


from  one  place  of  work  to  another  by 
means  of  a  conveyance  furnished  by  the 
employer,26  or  while  going  from  one  place 
to  another  at  the  direction  of  his  su- 
perior.27 

An  injury  to  a  domestic  servant  who 
sleeps  on  the  premises  may  arise  "out 
of"  the  employment,  although  the  injury 
is  received  while  she  is  lying  in  her 
bed.28  So  too,  the  fact  that  the  work- 


man is  on  the  premises  for  the  sole  pur- 
pose of  securing  his  pay  will  not  deprive 
him  of  the  right  to  compensation.29  And 
it  has  been  held  that  the  workman  is 
not  outside  the  scope  of  his  employment, 
although  he  is  on  the  premises  for  the 
sole  purpose  of  procuring  his  belongings, 
where  it  is  done  with  the  employer's  per- 
mission and  on  the  employer's  time.80 
The  procuring  of  food  or  other  refresh- 


of  the  tide,  did  not  go  outside  of  the 
ambit  of  his  employment  in  attempting  to 
get  into  a  small  boat  near  by,  in  which 
he  could  sit  down  and  watch  the  tide  until 
the  time  was  favorable  for  him  to  perform 
his  work.  May  v.  Ison  [1914]  W.  C.  & 
Ins.  Rep.  (Eng.)  41,  110  L.  T.  N.  S.  525, 
7  B.  W.  C.  C.  148. 

It  may  be  found  that  an  injury  was  by 
accident  arising  "out  of"  the  employment 
where  the  injury  was  received  by  a  serv- 
ant who  was  sitting  near  a  fire  warming 
himself,  while  he  was  waiting  for  the  arrival 
of  some  triicks,  the  wheels  of  which  it  was 
his  duty  to  oil.  Harrison  v.  Whittaker 
(1899)  16  Times  L.  R.  (Eng.)  108,  64  J.  P. 
54. 

26  An  employee  of  an  electric  tramway 
company  engaged  in  repairing  the  overhead 
wires  is,  while  riding  on  a  tower  wagon 
from  the  place  where  repairs  have  been 
completed  to  another  place  where  repair- 
ing is  required,  within  the  provisions  of 
the  act.  Rogers  v.  Cardiff  Corp.  [1905] 
2  K.  B.  (Eng.)  832,  75  L.  J.  K.  B.  N.  S. 
22,  54  Week.  Rep.  35,  93  L.  T.  N.  S.  683, 
22  Times  L.  R.  9,  70  J.  P.  9,  4  L.  G.  R.  1. 

27Jesson  v.  Bath  (1902;  C.  C.)  113  L. 
T.  Jo.  (Eng.)  206,  4  W.  C.  C.  9. 

28  A  domestic  servant  who  was  injured 
by  a  piece  of  mortar  falling  from  the  ceil- 
ing of  her  room,  as  she  was  in  the  act  of 
arising'  after  being  called  by  her  mistress, 
is  injured  by  accident  arising  out  of  and 
in  the  course  of  her  employment.  Aide- 
ridge  v.  Merry  [1913]  2  I.  R.  308,  [1913] 
W.  C.  &  Ins.  Rep.  97,  47  Ir.  Law  Times, 
5,  6  B.  W.  C.  C.  450. 

A  kitchen  maid  in  a  hotel,  who  slept 
on  the  premises,  and  was  suffocated  while 
asleep  in  her  sleeping  room  by  smoke  from 
a  fire  in  the  hotel,  suffered  death  from  acci- 
dent arising  out  of  and  in  the  course  of 
her  employment.  Chitty  v.  Nelson  (1908; 
C.  C.)  126  L.  T.  Jo.  (Eng.)  172,  2  B.  W. 
C.  C.  496. 

But  where  a  workman  lived  in  a  house 
owned  by  his  employers,  and  agreed  to 
be  responsible  for  certain  cleaning  opera- 
tions in  the  house  and  other  duties,  and 
in  return  was  to  have  the  house  rent  and 
rates  free,  and  was  killed  by  gas  escaping 
into  his  bedroom  from  a  stove  in  the  office, 
where  it  had  been  lighted  by  the  night 
watchman,  he  did  not  suffer  injury  by 
accident  arising  out  of  or  in  the  course 
of  his  employment.  Wray  v.  Taylor  Bros. 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  446,  109 
L.  T.  N.  S.  120,  6  B.  W.  C.  C.  530,  4  N.  C. 
C.  A.  935.  The  court  found  that  the  occu- 
L.R.A.1916A. 


pancy  of  the  cottage  was  merely  a  con- 
tract of  tenancy  in  consideration  of  serv- 
ices to  be  given. 

29  An   injury   to   a   servant   who,   several 
hours  after  he  had  left  off  work  on  Satur- 
day morning,  went  to  the  pay  office,  as  he 
was  required,  to  get  his  wages,  was  occa- 
sioned "in  the  course  of  his  employment." 
Lowry  v.  Sheffield  Coal  Co.  (1907)  24  Times 
L.  R.   (Eng.)   142. 

In  Riley  v.  Holland  [1911]  1  K.  B.  (Eng.) 
1029,  80  L.  J.  K.  B.  N.  S.  814,  104  L.  T. 
N.  S.  371,  27  Times  L.  R.  327,  4  B.  W. 
C.  C.  155,  where  the  applicant,  who  had 
been  discharged  from  a  mill,  went  to  the 
mill  two  days  afterwards  upon  the  regular 
pay  day  to  get  her  pay,  and  was  injured 
by  slipping  on  her  way  down  the  stairs 
from  the  pay  office,  it  was  held  that  the 
accident  arose  out  of  and  in  the  course  of 
her  appointment.  Cozens-Hardy,  M.  R.,  re- 
ferred to  the  observations  of  Vaughan  Wil- 
liams, L.  J.,  in  Holness  v.  Mackay  [1899] 
2  Q.  B.  (Eng.)  319,  where  the  latter  said: 
"Though  the  employment  is  at  an  end  in 
the  sense  that  the  workman  (whether  right- 
ly or  wrongly)  has  ceased  to  work  under 
the  contract,  yet  the  employment  may  con- 
tinue because  of  an  obligation  of  the  em- 
ployer to  the  workman  arising  out  of  the 
course  of  the  employment  and  continuing 
at  the  time  of  the  occurrence  of  the  acci- 
dent." 

An  injury  to  a  workman  on  the  public 
roads  engaged  in  building  manholes,  re- 
ceived while  on  his  way  back  to  his  work 
from  the  tramway  station  where  he  was 
obliged  to  go  for  his  pay,  which  injury 
was  received  as  he  was  dismounting  from 
a  tram  car  which  he  had  gotten  on  to  be 
carried  back  to  his  work,  but  which,  as 
he  found,  would  not  carry  him  to  his  place 
of  work,  is  one  caused  by  accident  arising 
"out  of  and  in  the  course  of"  his  employ- 
ment. Nelson  v.  Belfast  Corp.  (1908)  42 
Ir.  Law  Times,  223,  1  B.  W.  C.  C.  158. 

But  in  Lasturka  v.  Grand  Trunk  P.  R. 
Co.  (1913)  7  B.  W.  C.  C.  (Alberta)  1031, 
the  supreme  court  of  Alberta  held  that  a 
workman  who,  on  the  day  following  his 
leaving  the  employment,  was  injured  while 
walking  along  the  line  of  the  railway  to 
the  section  house,  presumably  for  the  pur- 
pose of  receiving  his  pay,  did  not  suffer 
injury  by  accident  arising  out  of  and  in 
the  course  of  the  employment. 

30  In  Gonyea  v.  Canadian  P.  R.  Co.  (1913) 
7   B.   W.  C.  C.    (Sask.)    1041,  the  supreme 
court  of  Saskatchewan,  affirming  the  deci- 
sion  of   the   lower   court    (7   B.  W.   C.  C. 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


59 


tnent  is  recognized  as  essential  to  a 
workman,  and  he  does  not,  as  a  matter 
of  course,  go  outside  of  his  employment 
where  he  leaves  off  active  work  to  secure 
food  or  drink.31  And  the  mere  fact  that 
the  workman  is  paid  by  the  hour  does 


not  disentitle  him  to  compensation  for 
injuries  received  while  engaged  in  eating 
his  lunch.32  But  the  lunch  hour  of  a 
law  writer  is  not  a  part  of  the  time  of 
his  employment.83 

The  fact  that  a  workman  is  engaged 


1029),  held  that  an  injury  to  a  workman 
employed  by  a  railroad  company  arose  out 
of  and  in  the  course  of  his  employment, 
where  he  was  injured  while  on  the  defend- 
ant's premises  by  their  permission,  during 
the  time  he  was  in  their  employment,  tor 
the  purpose  of  procuring  some  clothes  and 
bedding  belonging  to  him.  whicft  were 
brought  by  one  of  the  defendant's  trains 
from  his  last  place.  After  citing  a  numoer 
of  cases  decided  by  the  English  court  or 
appeal,  the  court  said:  "The  result  of 
these  cases  would  seem  to  be  that  if  any 
workman,  during  the  hours  of  his  employ- 
ment, with  the  permission  of  his  employ- 
ers, ceases  Avorking  for  a  short  time  tor 
purposes  of  his  own,  the  continuity  of  his 
employment  is  not  thereby  impaired.  By 
granting  permission,  the  employer  in  effect 
says:  'Your  time  is  mine,  but  I  will  give 
you  the  short  period  you  require.'  if,  how- 
ever, no  permission  is  given,  or  the  cir- 
cumstances show  that  the  time  taken  was 
not  to  be  considered  the  employer's  time, 
the  workman  ceases  his  employment,  if  he 
goes  about  his  own  business.  In  the  case 
at  bar,  the  plaintiff  had,  as  I  have  found, 
permission  to  go  for  his  clothes  at  the 
time  he  did  go  for  them.  His  employer 
made  him  a  gift  of  the  necessary  time. 
I  am  therefore  of  opinion  that  he  was  in 
the  course  of  his  employment." 

81  Compensation  may  be  recovered  where 
a  workman  feeling  thirsty  at  his  work 
goes  for  a  drink  of  water  to  a  place  close 
at  hand  on  his  master's  premises,  and  is 
injured  before  returning  to  his  place  of 
work.  Keenan  v.  Flemington  Coal  Co. 
(1902)  5  Sc.  Sess.  Cas.  5th  series,  1«4, 
40  Scot.  L.  R.  144,  10  Scot.  L.  T.  409. 

Where  a  workman  employed  to  watch 
trawlers  in  a  quay,  whose  duty  required 
him  occasionally  to  be  on  the  quay,  and 
whose  watch  continued  for  twenty-live 
hours,  and  who  was  to  furnish  his  own 
food  and  drink,  left  his  place  of  duty  for 
a  short  time  to  get  a  drink,  and  while 
descending  a  fixed  ladder  attached  to  the 
quay  for  the  purpose  of  going  to  a  trawler 
fell  into  the  water  and  was  drowned.  Low 
v.  General  Steam  Fishing  Co.  [1909]  A. 
C.  (Eng.)  523,  78  L.  J.  P.  C.  N.  S.  148, 
101  L.  T.  N.  S.  401,  25  Times  L.  R.  787, 
53  Sol.  Jo.  763. 

Where  a  workman  who,  in  the  course 
of  his  employment,  was  sitting  on  a  wagon 
which  was  being  drawn  by  a  traction  en- 
gine, fell  from  the  wagon  in  an  attempt 
to  recover  his  pipe  which  he  had  dropped. 
M'Lauchlan  v.  Anderson  [1911]  S.  C.  (Scot.) 
529.  The  Lord  President  said:  "He  had  a 
right  to  be  at  the  place,  riding  on  or  walk- 
ing beside  the  wagons;  he  was  within  the 
time  during  which  he  was  employed,  be- 
cause the  accident  happened  during  the  actu- 
L.R.A.1916A. 


al  period  of  transit;  and  he  was  doing  a 
thing  which  a  man  while  working  may 
reasonably  do, — a  workman  of  his  sort 
may  reasonably  smoke,  he  may  reasonably 
drop  his  pipe,  and  he  may  reasonably  pick 
it  up  again." 

A  brewer's  drayman  engaged  in  deliv- 
ering and  obtaining  orders  for  beer,  whose 
hours  were  from  8  o'clock  in  the  morning 
until  8  in  the  evening  was  not  out  of  his 
employment  in  stopping  the  dray,  cross- 
ing the  street  to  a  public  inn  to  get  a 
glass  of  beer,  and  returning  within  two 
minutes  to  his  dray;  and  his  dependents 
may  recover  compensation  for  his  death 
by  being  struck  by  a  motor  car  while  he 
was  returning  to  the  dray.  Martin  v.  Lovi- 
bond  [1914]  2  K.  B.  (Eng.)  227,  83  L.  J. 
K.  B.  N.  S.  806,  110  L.  T.  N.  S.  455,  [1914] 
W.  N.  47,  [1914]  W.  C.  &  Ins.  Rep.  76,  7 

B.  W.    C.    C.    243.     Cozens-Hardy,   M.    R., 
said    that    his    employment    rendered    him 
exceptionally   exposed   to   street   accidents. 

An  employee  in  respondent's  warehouse, 
who  with  the  knowledge  of  his  employers 
goes  to  a  cabin  upon  the  railroad  premises 
for  tea,  is  not,  while  returning  from  the 
cabin,  outside  of  his  employment,  and  he 
is  entitled  to  compensation  for  injuries 
received  at  that  time.  Earnshaw  v.  Lanca- 
shire &  Y.  R.  Co.  (1903;  C.  C.)  115  L.  T. 
Jo.  (Eng.)  89,  5  W.  C.  C.  28. 

A  girl  employed  on  a  threshing  machine 
is  not  outside  of  her  employment  while 
partaking  of  some  refreshment  furnished 
by  her  employer,  merely  because  of  the 
fact  that  at  the  time  she  takes,  for  the 
sake  of  shelter,  a  position  on  the  opposite 
side  of  the  opening  through  which  the 
sheaves  pass  into  the  machine,  and  is  in- 
jured while  arising  from  some  sheaves  on 
which  she  has  been  sitting.  Carinduff  v. 
Gilmore  (1914)  48  Ir.  Law  Times,  137, 
[1914]  W.  C.  &  Ins.  Rep.  247,  7  B.  W. 

C.  C.  981. 

Injury  to  a  night  watchman,  caused  by 
the  falling  of  a  shanty  into  which  he  went 
to  cook  some  food,  as  it  was  raining,  may, 
in  the  absence  of  any  prohibition  against 
the  use  of  the  shanty,  be  considered  as 
arising  out  of  and  in  the  course  of  his 
employment.  Morris  v.  Lambeth  Borough 
Council  (1905)  22  Times  L.  R.  (Eng.)  22. 

32  A  servant  who  is  paid  by  the  hour 
for  the  number  of  hours  which  he  actually 
works  during  the  week  is  entitled  to  com- 
pensation for  injuries  received  by  a  wall 
falling  on  him  while  eating  his  dinner. 
Blovelt  v.  Sawyer  [1904]  1  K.  B.  (Eng.) 
271,  73  L.  J.  K.  B.  N.  S.  155,  68  J.  P.  110, 
52  Week.  Rep.  503,  89  L.  T.  N.  S.  658,  20 
Times  L.  R.  105. 

33McKrill  v.  Howard  (1909)  2  B.  W. 
C.  C.  (Eng.)  460. 


60 


WORKMEN'S  COMPENSATION. 


by.  the  hour  or  by  the  piece  does  not 
necessarily  prevent  recovery  of  compen- 
sation for  injuries  received  while  not 
actually  engaged  at  his  duties.34 

In  the  absence  of  special  circum- 
stances the  act  does  not  apply  to  a 
workman  in  going  to  and  from  his 
work.85  His  employment  begins,  in  the 


ordinary  course,  only  when  the  time  for 
work  has  arrived  and  the  locality  has 
been  reached  at  which  the  work  is  to  be 
performed.36  So,  too,  the  employment 
is  ended  where  the  work  has  been  con- 
cluded, and  the  workman  has  left  the 
place  of  work,  and  is  upon  the  road  to 
his  home.87  But  it  has  been  said  that 


34  A  workman  on  a  farm  who  is  injured 
while    going   to    his    home    but    while    still 
on    the    master's    premises    is    injured    by 
accident  "arising  out  of  and  in  the  course 
of  his  employment,"  although  he  was  paid 
by   the    piece,   and   had   completed   a   piece 
when   he   left   off   work.      Taylor   v.   Jones 
(1907;   C.  C.)    123  L.  T.  Jo.    (Eng.)    553,  1 
B.  W.  C.  C.  3. 

See  also  Blovelt  v.  Sawyer  (Eng.)  note 
32,  supra. 

35  Edwards  v.  Wingham  Agri.  Implement 
Co.    [1913]    3   K.   B.    (Eng.)    596,   82   L.   J. 
K.  B.  N.  S.  998,  109  L.  T.  N.  S.  50,  [1913] 
W.  N.  221,  57  Sol.  Jo.  701,  6  B.  W.  C.  C 
511    (workman   riding  home  on   bicycle). 

In  Kelly  v.  The  Foam  Queen  (1910)  3 
B.  W.  C.  C.  (Eng.)  113,  Cozens-Hardy, 
M.  R.,  said:  "We  have  pointed  out,  not 
once  or  twice,  but  often,  that  save  in 
exceptional  circumstances  the  act  does  not 
extend  to  and  protect  a  man  when  on  his 
way  from  his  house  to  his  employment." 

36  No   compensation   is   allowable   for    in- 
juries  to    a   workman   on   his   way   to   his 
work  and  on  the  employer's  premises,  but 
before  his  duties  began.     Anderson  v.  Fife 
Coal   Co.    (1910)    47    Scot.   L.   R.   3    [1910] 
S.    C.    8,   3    B.    W.   C.    C.    539;    nor    where 
a    newly    engaged    shepherd,    while    being 
transported   with   his    family   and    chattels 
to  the  cottage  that  he  was  to  occupy  on 
the    farm,    fell    from    the    wagon    and    was 
killed.     Whitbread  v.  Arnold  "  (1908)    99  L. 
T.  N.  S.   (Eng.)    103. 

Where  an  employee  of  railroad  contractors 
engaged  in  ballasting  a  railroad  siding  was 
run  over  by  a  train  about  seven  minutes 
before  the  hour  for  commencing  work,  at 
a  point  several  hundred  yards  from  the 
work,  as  he  was  proceeding,  in  accordance 
with  his  employer's  directions,  along  the 
main  track,  for  the  purpose  of  going  to 
work,  this  was  not  an  accident  arising  out 
of,  and  in  the  course  of,  his  employment. 
Holness  v.  Mackay  [1899]  2  Q.  B.  (Eng.) 
319,  68  L.  J.  Q.  B.  N.  S.  724,  47  Week. 
Rep.  531,  80  L.  T.  N.  S.  831,  15  Times 
L.  R.  351  (Romer,  L.  J.,  dissenting). 

A  workman  employed  at  a  coal  mine, 
injured  while  going  from  his  house  to  his 
work  by  the  usual  road  and  while  crossing 
a  railway  belonging  to  his  employers,  is 
not  within  the  protection  of  the  act,  al- 
though the  place  of  the  accident  was  part 
of  the  mine  within  the  meaning  of  the 
coal  mines  regulation  act  1887,  and  the 
workman  might  have  been  required  to  work 
there  under  his  contract  of  service,  when, 
in  point  of  fact,  his  only  duties  at  the 
time  were  those  of  a  miner  underground, 
and  did  not  actually  commence  until  he 
L.R.A.1936A. 


arrived  at  the  lamp  cabin,  360  yards  distant 
from  the  scene  of  the  accident.  Anderson 
v.  Fife  Coal  Co.  (Scot.)  supra. 

In  Davies  v.  Rhymney  Iron  Co.  (1899) 
16  Times  L.  R.  (Eng.)  329,  2  W.  C.  C. 
22,  it  was  held  that  a  workman  who  was 
injured  at  a  point  J  of  a  mile  from  his 
place  of  work,  while  alighting  from  a  train 
furnished  by  the  employer  for  the  conven- 
ience of  the  workmen,  but  which  they 
were  not  required  to  ride  upon,  did  not 
suffer  from  injury  from  accident  arising 
"out  of  and  in  the  course  of"  the  employ- 
ment. 

The  fact  that  employers  gave  a  workman 
who  was  employed  as  a  ship  sealer  a  re- 
turn ticket  from  a  station  near  his  home 
to  a  station  near  the  dock  in  which  the 
vessel  upon  which  he  was  at  work  lay  did 
not  make  him  in  the  employment  from  the 
time  he  reached  the  first  station,  so  as  to 
render  the  employers  liable  for  compensa- 
tion for  injuries  received  by  him  after  he 
reached  the  docks,  caused  by  his  making 
a  mistake  as  to  the  location  of  the  gang- 
way, and  falling  into  the  dock.  Nolan  v. 
Porter  (1909)  2  B.  W.  C.  C.  (Eng.)  106. 

Injury  to  a  workman  by  strikers  while 
he  was  on  his  way  to  the  place  of  work 
and  about  seven  minutes'  walk  therefrom 
did  not  arise  out  of  and  in  the  course 
of  his  employment.  Poulton  v.  Kelsall, 
[1912]  2  K.  B.  (Eng.)  131,  81  L.  J.  K.  B. 
N.  S.  774,  106  L.  T.  N.  S.  522,  28  Times 
L.  R.  329,  [1912]  W.  C.  Rep.  295,  [1912] 
W.  N.  98,  5  B.  W.  C.  C.  318.  It  was 
further  held  that  an  agreement  by  the 
master  to  compensate  the  workman  for 
any  injuries  which  arose  from  the  strike 
did  not  have  the  effect  of  making  the 
employer  liable  under  the  compensation  act, 
although  it  might  have  afforded  the  work- 
man a  remedy  at  common  law. 

37  In  a  Scotch  case  recovery  was  denied 
where  a  workman  who,  after  the  conclusion 
of  his  day's  work,  was  walking  home  along 
a  private  railway  track  belonging  to  his 
employer,  was  run  over  at  a  point  about 
230  yards  from  the  place  where  he  worked. 
Caton  v.  Summerlee  &  M.  Iron  &  Steel  Co. 
(1902)  4  Sc.  Sess.  Gas.  5th  series,  989, 
39  Scot.  L.  R.  762,  10  Scot.  L.  T.  204. 

A  workman  did  not  suffer  injury  by 
accident  arising  out  of  or  in  the  course  of 
his  employment,  where  he  was  injured  on 
his  way  home  from  work,  along  a  public 
footpath,  although  the  path  had  been  dedi- 
cated to  the  public  by  the  employers,  over 
whose  land  it  ran.  Williams  v.  Smith 
(1913)  108  L.  T.  N.  S.  (Eng.)  200,  [1913] 
W.  C.  &  Ins.  Rep.  146,  6  B.  W.  C.  C.  102. 

A  workman  whose  duties  were  entirely 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


61 


the  moment  that  actual  work  begins  can- 
not be  taken  as  the  true  moment  of  the 
•commencement  of  the  employment,  for 
the  purposes  of  the  act.38  Nor  can  the 
moment  that  the  actual  work  stops  be 
considered  as  the  time  of  the  termina- 
tion of  the  employment.39  So  a  miner, 
injured  while  riding  from  his  home  to 
the  mine  on  a  train  provided  by  the  em- 
ployer, in  accordance  with  the  terms  of 


the  contract  of  employment,  suffers  in- 
jury by  accident  arising  out  of  the  em- 
ployment.40 And  recovery  may  be  had 
for  an  accident  occurring  before  the 
place  of  work  was  reached,  if,  during 
the  antecedent  period  within  which  it 
occurred,  the  servant  was,  as  a  matter 
of  fact,  under  the  master's  control.41 
The  mere  fact,  however,  that  the  work- 
man is  on  the  employer's  premises  is  not 


underground  did  not  suffer  injury  by  acci- 
dent '  arising  out  of  and  in  the  course  of 
his  employment,  where  he  was  injured  after 
Tie  had  finished  his  work  and  was  abovo 
ground,  at  a  place  about  400  yards  from 
the  shaft  mouth,  and  280  yards  from  the 
colliery  office.  Graham  v.  Barr  [1913]  S. 
C.  538,  50  Scot.  L.  R.  391,  [1913]  W.  C.  & 
Ins.  Rep.  202,  6  B.  W.  C.  C.  412. 

Compensation  is  not  recoverable  where 
a  workman  had  concluded  his  work,  and 
was  injured  while  riding  to  his  home  on 
A  bicycle,  along  the  main  road.  Edwards 
v.  Wingham  Agri.  Implement  Co.  [1913] 
:3  K.  B.  (Eng.)  596,  82  L.  J.  K.  B.  N.  S. 
998,  109  L.  T.  N.  S.  50,  [1913]  W.  N.  211, 
-57  Sol.  Jo.  701,  6  B.  W.  C.  C.  511. 

88  Cross,  T.  &  Co.  v.  Catteral,  an  unre- 
ported  decision  of  the  House  of  Lords,  cited 
in  Hoskins  v.  Lancaster  (1910)  26  Times 
L.  R.  (Eng.)  612,  3  B.  W.  C.  C.  476.  In 
the  latter  case  it  was  held  that  a  collier 
-who  was  injured  by  the  slamming  of  an 
iron  gate  on  the  employer's  premises,  which 
Tie  was  obliged  to  pass  through  to  go  to 
his  work,  was  injured  by  accident  arising 
•out  of  his  employment,  although  the  gate 
in  question  was  150  yards  away  from  the 
Tamp  room  of  the  mine,  through  which 
the  collier  was  obliged  to  go  on  his  way 
to  work. 

In  Lawless  v.  Wigan  Coal  &  I.  Co.  (1908) 
124  L.  T.  Jo.  (Eng.)  532,  1  B.  W.  C.  C. 
153,  the  court  said:  "The  authorities  clear- 
ly decide  that  if  a  workman  arrives  at  the 
master's  premises  where  he  is  employed 
at,  or  within  a  reasonable  margin  before, 
the  time  at  which  he  is  due  to  commence 
work,  and,  whilst  physically  engaged  in 
making  his  way  from  the  entrance  of  the 
master's  premises  to  the  place  where  he 
works,  meets  with  an  accident,  it  is  open 
to  the  judge  to  say  that  the  accident  arose 
out  of  and  in  the  course  of  his  employ- 
ment." 

Where  the  employees  came  to  their  work 
by  a  train  which  arrived  about  twenty 
minutes  before  the  actual  work  began, 
-and,  to  the  knowledge  of  the  employer, 
customarily  spent  the  twenty  minutes  in 
getting  refreshment  in  a  mess  cabin  main- 
tained by  the  employer  for  them,  a  work- 
man who,  while  proceeding  to  deposit  his 
ticket  at  the  ticket  office  as  he  was  required 
to  do  by  the  rules  of  the  employer,  fell 
into  an  excavation  near  the  ticket  office, 
about  twenty  minutes  before  the  work  be- 
gan, was  injured  by  accident  arising  out 
of  and  in  the  course  of  his  employment. 
L.R.A.1936A. 


Sharp  v.  Johnson  [1905]  2  K.  B.  (Eng.) 
139,  74  L.  J.  K.  B.  N.  S.  566,  53  Week. 
Rep.  597,  92  L.  T.  N.  S.  675,  21  Times 
L.  R.  482. 

39  In  Gane  v.  Norton  Hill  Colliery  Co. 
[1909]  2  K.  B.  (Eng.)  539,  78  L.  J.  K.  B. 
N.  S.  921,  100  L.  T.  N.  S.  979,  25  Times 
L.  R.  640,  2  B.  W.  C.  C.  42.  Cozens-Hardy, 
M.  R.,  said  that  the  course  of  the  collier's 
employment  is  not  limited  at  one  end  by 
the  moment  when  he  gets  to  the  place 
where  he  is  to  use  his  pick,  or  at  the 
other  end  by  the  moment  when  he  comes 
up  from  the  pit,  but  it  must  include  a 
reasonable  interval  of  time  and  of  space 
during  which  the  employment  lasts.  In 
this  case  the  collier  was  injured  in  leaving 
the  pit,  while  trying  to  get  under  some 
trucks  standing  over  the  route  which  the 
colliers  usually  took. 

«  Cremins  v.  Guest  [1908]  1  K.  B.  (Eng.) 
469,  77  L.  J.  K.  B.  N.  S.  326,  24  Times 
L.  R.  189,  98  L.  T.  N.  S.  335,  1  B.  W. 
C.  C.  160;  Walton  v.  Tredegar  Iron  &  Coal 
Co.  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  457, 
6  B.  W.  C.  C.  592. 

41  As,  where  an  engine  cleaner  who  had 
been  conveyed  free  of  charge  in  his  employ- 
er's train  to  the  place  where  he  was  to 
do  his  work  was  run  over  while  crossing 
the  line  to  reach  the  shed  where  the  engines 
were  standing.  Holmes  v.  Great  Northern 
R.  Co.  [1900]  2  Q.  B.  (Eng.)  409,  83  L.  T. 
N.  S.  44,  69  L.  J.  Q.  B.  N.  S.  854,  64 
J.  P.  532,  48  Week.  Rep.  681,  16  Times 
L.  R.  412,  distinguishing  between  the  be- 
ginning of  the  employment  and  the  begin- 
ning of  work. 

The  accident  arose  "out  of  and  in  the 
course  of  his  employment,"  where  a  miner, 
while  proceeding  above  ground  to  his  work, 
slipped  and  broke  his  leg  upon  rails  be- 
longing to  the  mine,  leading  to  the  doorway 
of  a  horizontal  passage  by  which  the  mine 
was  entered,  at  a  spot  distant  between  9 
and  13  feet  from  the  doorway.  Mackenzie 
v.  Coltness  Iron  Co.  (1903)  6  Sc.  Sess.  Cas. 
5th  series  (Scot.)  8.  Lord  M'Laren  said: 
"I  think  the  words  'in  the  course  of  his 
employment'  cover  any  part  of  the  under- 
taking in  which  the  man  may  legally  be  for 
the  purposes  of  his  employment  and  in  the 
pursuance  of  his  employment." 

A  miner's  employment  has  begun  where 
he  has  been  given  his  pit  lamp  and  "tal- 
lies," and  is  awaiting  at  the  pit  brow  his 
turn  to  enter  the  cage.  Fitzpatrick  v.  Hind- 
ley  Field  Colliery  Co.  (1901)  4  W.  C.  C. 
(Eng.)  7. 


62 


WORKMEN'S  COMPENSATION. 


sufficient  to  render  him  in  the  employ- 
ment.42 

Injuries  received  while  the  employee 
is  obeying  the  directions  of  a  superior 
arise  out  of  and  in  the  course  of  the 
employment ;  4S  and  this  is  so  even  if  the 
act  in  question  is  outside  the  scope  of 
the  regular  employment,44  and,  to  the 
knowledge  of  the  workman,  the  order  is 
contrary  to  the  rules  of  the  establish- 

42  An  accident  to  a  workman,  caused  by 
slipping  on  some  ice  at  a  point  a  quarter 
of  a  mile  from  his  place  of  work,  does  not 
arise  out  of  and  in  the  course  of  his  em- 
ployment, although  he  was  on  the  employ- 
er's premises  at  the  time.     Gilmour  v.  Dor- 
man  (1911)  105  L.  T.  N.  S.  (Eng.)  54,  4  B. 
W.  C.  C.  279. 

A  miner  who  on  going  to  his  place  of 
work  takes,  with  the  employer's  permis- 
sion, a  short  cut  over  the  employer's  premi- 
ses, and  slips  on  some  steps  about  ^  of  a 
mile  from  the  place  of  work,  does  not 
suffer  injury  by  accident  arising  "out  of 
and  in  the  course  of"  his  employment. 
Walters  v.  Staveley  Coal  &  I.  Co.  (1911: 
H.  L.)  105  L.  T.  N.  S.  (Eng.)  119,  55  Sol. 
Jo.  579,  4  B.  W.  C.  C.  303. 

43  A  fruit  picker  who  meets  with  an  acci- 
dent in  going  from  one  part  of  the  farm 
to  another  at  the  direction  of  the  foreman 
suffers   an   accident   arising  out   of   and   in 
the  •course   of  his   employment.     Jesson   v 
Bath    (1902;    C.  C.)    113  L.   T.  Jo.    (Eng.) 
206,  4  W.  C.  C.  9. 

A  workman  in  a  mine,  who  a  few  days 
after  leaving  off  work  went  into  the  mine, 
with  the  permission  of  the  manager,  to  get 
his  tools,  and  was  injured  by  the  fall  of  a 
stone,  suffered  injury  by  accident  arising 
"out  of  and  in  the  course  of"  his  employ- 
ment. Molloy  v.  South  Wales  Anthracite 
Colliery  Co.  (1910)  4  B.  W.  C.  C.  (Eng.)  65. 

Where  the  workman's  injury  was  caused 
by  a  rock  which  fell  while  he  was  shoveling 
ore  in  a  chute  in  pursuance  of  an  order 
from  a  superior  servant.  Cervio  v.  Granby 
Consol.  Min.  Smelting  &  Power  Co.  (1910) 
15  B.  C.  192. 

44  A  girl  in  a  machine  shop  who  attempts 
to  remove  a  piece  of  tin  which  has  jammed 
the  machine,  in  accordance  with  the  direc- 
tions of  a  superior,   is  not  outside  of  her 
employment,    although    ordinarily    she    has 
nothing   to   do   with    the   operation   of   the 
machine.     Geary  v.  Ginzler  [1913]  W.  C.  & 
Ins.  Rep.   (Eng.)   314,  108  L.  T.  N.  S.  286, 
6  B.  W.  C.  C.  72. 

The  scope  of  the  employment  of  a  boy 
employed  to  truck  wood  away  from  a  ma- 
chine was  enlarged  by  the  command  of  the 
employer,  who,  seeing  him  doing  nothing, 
ordered  him  to  find  a  job,  so  that  he  may 
recover  compensation  for  injuries  received 
in  attempting  to  clear  the  suction  pipe  of 
the  machine.  Lane  v.  Lusty,  [1915]  3 
K.  B.  (Eng.)  230.  84  L.  J.  K.  B.  N.  S.  1342, 
[1915]  W.  N.  252. 

«Statham    v.   Galloways    (1900;    C.    C.) 
109  L.  T.  Jo.  (Eng.)  133,  2  W.  C.  C.  149. 
L.R.A.1916A. 


ment ;  46  and  a  boy  may  recover  if  he 
is  injured  while  obeying  an  adult  em- 
ployee, although  as  a  matter  of  fact  such 
adult  does  not  have  any  authority  over 
the  boy.46 

Where  the  accident  was  caused  by  the 
intoxication  of  the  workman  at  a  time 
when  he  was  not  actually  engaged  in  his 
duties  his  injuries  do  not  arise  out  of  the 
employment.47  But  it  has  been  held  that 

*6  Where  a  boy  thirteen  years  of  age. 
employed  to  do  various  kinds  of  work  under 
the  direction  of  a  foreman,  was  told  by  an 
adult  workman  that  the  foreman  said  he 
was  to  oil  a  machine,  and  was  injured 
while  so  doing,  the  finding  of  the  county 
court  that  the  injury  arose  out  of  and  in 
the  course  of  his  employment  will  be  sus- 
tained. Brown  v.  Scott  (1899)  1  W.  C.  C. 
(Eng.)  11. 

In  Brown  v.  Scott  (1899)  (Eng.)  supra, 
the  court  of  appeal  (Williams,  L.  J.,  dis- 
senting) allowed  recovery  to  be  had  for  an 
injury  received  by  a  boy  who  undertook  to 
oil  a  machine  while  in  motion,  in  compli- 
ance with  the  order  of  a  fellow  workman, 
who  had  no  authority  over  him,  but  told 
him  falsely  that  his  foreman  had  given  the 
direction  thus  conveyed  to  him. 

*?  A  commercial  traveler,  who  goes  to  a 
town  but  makes  no  attempt  to  transact 
business,  and  becomes  intoxicated,  and  while 
at  the  station  awaiting  the  train  home,  is 
injured  by  a  passing  train,  does  not  suffer 
injury  by  accident  arising  out  of  and  in  the 
course  of  his  employment.  M'Crae  v.  Ren- 
frew (1914)  2  Scot.  L.  T.  354,  51  Scot.  L. 
R.  467,  7  B.  W.  C.  C.  898.  The  Lord 
Justice-Clerk  said:  "The  only  statement 
of  fact  regarding  his  being  there  is  that 
he  got  himself  into  such  a  state  of  in- 
toxication that  when  he  went  to  a  sec- 
ond public-house,  his  condition  was  such 
that  he  was  refused  when  he  asked  for  a 
drink  because  he  was  intoxicated.  He  was- 
therefore  unfit  for  business  and  was  hot  in 
the  course  of  his  employment.  He  had 
chosen  to  take  to  a  course  of  conduct  which 
was  inconsistent  with  his  actions  being  in 
the  course  of  his  employment.  I  can  not 
for  my  part  accept  the  idea  that  having 
gone  out  of  the  course  of  his  employment, 
he  entered  it  again  that  night  because  he 
set  off  in  his  staggering  drunken  state  to 
endeavor  to  get  home.  To  me  it  appears 
just  to  say  tnat  a  man,  the  course  of  whose 
ordinary  employment  would  cover  his  re- 
turn home  after  a  journey,  may  break  off 
from  the  course  of  his  employment,  and 
that  it  is  entirely  a  question  of  circum- 
stances whether  he  can  be  held  to  have 
taken  up '  the  course  of  his  employment 
again  merely  because  he  later  proceeds  to 
make  his  way  home." 

The  drunkenness  of  a  mate  and  not  a 
risk  incident  to  his  employment  must  be 
held  to  have  been  the  cause  of  his  death 
where  he  appeared  on  the  bridge  in  such  a 
condition  of  intoxication  that  the  master 
ordered  him  below  and  he  did  not  imme- 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


63 


if  the  injury  occurred  while  the  workman 
was  at  his  required  work,  and  was  of 
such  a  character  that  it  might  have  oc- 
curred had  he  been  entirely  sober,  it 

diately  obey  such  orders  but  was  last  seen 
about  eight  of  ten  minutes  after  receiv- 
ing the  order  standing  at  the  head  of  the 
ladder  by  which  the  bridge  was  reached,  and 
shortly  thereafter  a  thud  was  heard  and 
he  was  found  in  an  unconscious  condition 
at  the  foot  of  the  ladder,  nobody  having 
seen  him  fall,  and  it  not  being  proved 
whether  he  fell  While  attempting  to  obey 
the  orders  and  descend  the  ladder.  Murphy 
v.  Cooney  [1914]  2  I.  R.  76,  [1914]  W.  C. 
&  Ins.  Rep.  45,  48  IT.  Law  Times,  13,  7  B. 
W.  C.  C.  962. 

The  second  mate  of  a  vessel  who  was 
ordered  by  the  captain  to  go  to  his  room 
because  of  his  intoxicated  condition  and 
who  instead  of  obeying  the  captain  went 
aft  to  speak  to  the  chief  engineer  and  on 
his  way  fell  down  the  hatch  and  was  in- 
jured, does  not  suffer  injury  by  accident 
arising  out  of  his  employment.  Horsfall  v. 
The  Jura  [1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
183,  6  B.  W.  C.  C.  213. 

The  fact  that  a  sailor  has  reached  the 
vessel  is  not  sufficient,  if  he  reaches  it  in 
such  a  state  of  intoxication  that  he  can- 
not perform  his  duty,  and  such  intoxica- 
tion is  the  cause  of  his  death.  Frith  v.  The 
Louisianian  [1912]  2  K.  B.  (Eng.)  155, 
81  L.  J.  K.  B.  N.  S.  701,  [1912]  W.  C.  Rep. 
285,  5  B.  W.  C.  C.  410,  106  L.  T.  N.  S.  667, 
[1912]  W.  N.  98,  28  Times  L.  R.  331, 
Buckley,  L.  J.,  said:  "The  whole  question 
here  is  whether  the  accident  to  this  man 
arose  out  of  his  employment.  I  have  not 
the  smallest  hesitation  in  answering  that 
in  the  negative.  It  arose  out  of  the  fact 
that  he  was  so  hopelessly  drunk  that  lie 
could  not  stand,  and  I  doubt  whether  he 
could  see.  He  had  gone  on  shore  without 
leave,  which  by  itself  is  misconduct,  and 
had  got  drunk  there;  he  came  back  so  drunk 
that  he  was  thrown  on  the  deck  like  a 
sack  of  sand;  he  staggered  to  his  feet  after 
a  minute  or  two  and  fell  over  the  side  of  the 
ship.  He  was  not  engaged  on  his  employ- 
ment; he  was  not  fit  for  the  performance  of 
his  employment.  If  he  had  been  in  his 
employment  he  would  not  have  been  in  that 
part  of  the  ship,  but  elsewhere.  He  was 
within  the  ambit  of  the  employment  in  the 
sense  that  he  was  on  board  the  ship;  but 
the  accident  did  not  arise  out  of  his  em- 
ployment, but  out  of  the  fact  that  he  was 
so  drunk  that  he  could  neither  stand  nor 
see." 

In  O'Brien  v.  Star  Line  (1908)  45  Scot. 
L.  R.  935,  1  B.  W.  C.  C.  177,  where  a  sea- 
man who  had  returned  to  his  ship  late  at 
night  the  worse  for  liquor,  was  found  the 
next  morning  lying  in  the  bottom  of  a  hole, 
and  there  was  no  evidence  as  to  how  he 
came  there  and  the  door  through  which  he 
fell  had  been  locked  and  bolted  as  usual  the 
night  before  but  was  found  broken  open  in 
the  morning  and  there  was  no  evidence  as 
to  how  or  when  it  was  so  broken,  it  was 
L.R.A.1916A. 


arose  out  of  the  employment,  although 
as  a  matter  of  fact  it  was  caused  by  his 
intoxicated  condition,  and  he  was  guilty 
of  serious  and  wilful  misconduct.48 


held  that  the  applicant  had  not  met  the 
burden  resting  upon  him  of  proving  that 
the  accident  arose  "out  of"  as  well  as  in 
the  course  of  che  employment.  Lord  M'Lar- 
en  said:  "Now,  in  a  certain  sense  this  may 
be  described  as  an  accident  arising  in  the 
course  of  the  employment,  because  O'Brien 
was  bound  by  the  terms  of  his  employment 
to  be  on  board  ship  at  night,  and  if  he  had 
not  been  in  the  employment  of  the  Star 
Line  the  accident  could  not  have  happened. 
But  this  consideration  does  not  solve  the 
question,  because  the  employer  is  only  lia- 
ble to  make  compensation  for  an  accident 
arising  'out  of  the  employment,  which  I 
take  to  mean  that  there  must  be  some 
causal  relation  between  the  employment 
and  the  accident.  On  the  facts  stated,  the 
accident  is  wholly  unexplained." 

Where  a  sailor  returned  to  a  ship  in  a 
drunken  condition  and  in  going  up  a  gang- 
way from  the  quay  to  the  ship,  he  let  go 
his  hold  of  the  hand  rope  and  fell  on  the 
quay,  receiving  injuries  from  which  he  died, 
the  injury  is  due  entirely  to  the  man's 
drunkenness  and  his  widow  is  not  entitled 
to  compensation.  Nash  v.  The  Rangatira 
[1914]  3  K.  B.  (Eng.)  978,  83  L.  J.  K.  B. 
1496,  [1914]  W.  N.  291,  111  L.  T.  N.  S. 
704,  58  Sol.  Jo.  705,  7  B.  W.  C.  C.  590. 

48  Where  a  stableman  was  required  in  the 
furtherance  of  his  duties  to  go  to  a  loft 
by  ascending  a  ladder  he  was  within  the 
course  of  his  employment,  and  if  he  slipped 
from  the  ladder  and  fell,  he  suffered  injury 
by  accident  arising  out  of  and  in  the  course 
of  his  employment,  notwithstanding  the 
slipping  was  due  to  his  intoxicated  condi- 
tion, and  he  was  consequently  guilty  of  seri- 
ous and  wilful  misconduct.  Williams  v. 
Llandudno  Coaching  &  Carriage  Co.  (1915) 
31  Times  L.  R.  (Eng.)  186,  84  L.  J.  K.  B. 
N.  S.  655,  [1915]  W.  C.  &  Ins.  Rep.  91, 
[1915]  W.  N.  52,  59  Sol.  Jo.  286,  8  B.  W. 
C.  C.  143.  The  master  of  the  rolls  laid 
down  the  principle  that  a  workman  who, 
while  doing  an  act  which  it  was  his  duty  to 
do,  met  with  an  accident  to  which  he  was 
more  exposed  than  persons  who  were  not 
so  engaged,  was,  or  in  case  of  death,  his 
dependents  were,  entitled  to  compensation 
from  the  employer,  although  the  act  was 
done  negligently  or  contrary  to  rules. 

An  engine  driver  who  while  driving  a 
traction  engine,  fell  off  the  foot  plate  and 
was  fatally  injured,  suffered  an  accident 
arising  out  of  the  employment,  although 
he  was  under  the  influence  of  drink  and 
unfit  for  work  at  the  time.  Frazer  v. 
Riddell  [1914]  S.  C.  125,  2  Scot.  L.  T.  377.. 
51  Scot  L.  R.  110,  7  B.  W.  C.  C.  841.  The 
Lord  President  said:  "A  man  may  be 
engaged  in  the  performance  of  his  work, 
and  an  accident  may  occur  incidental  to 
his  work,  and  therefore  'out  of  his  employ- 
ment, even  although  he  is  in  a  state  of  in- 
toxication so  great  as  to  be,  in  the  opinion 


64 


WORKMEN'S  COMPENSATION. 


Where  an  assault  is  such  as  is  likely 
to  happen  because  of  the  nature  of  the 
work  being  performed,  it  has  been  held 
to  arise  out  of  the  employment.49  An 
iron  moulder's  helper,  who,  while  work- 
ing in  a  stooping  position  in  close  prox- 
imity to  boxes  of  molten  metal,  was 


of  ordinary  people,  unfit  for  the  perform- 
ance of  his  work.  If  an  accident  befalls 
him  under  these  conditions,  it  appears  to 
me  that,  owing  to  his  intoxicated  condi- 
tion, it  is  rightly  called  an  accident  due 
to  serious  and  wilful  misconduct,  but  it  is 
none  the  less  an  accident  arising  'out  of 
his  employment  because  it  is  incidental  to 
it." 

49  An  assistant  school  master  in  an  in- 
dustrial school,  who  died  from  the  fracture 
of  the  skull  and  other  injuries,  the  result 
of  an  assault  committed  upon  him  by  sev- 
eral boys  of  the  school  in  pursuance  of  a 
prearranged  plan,  suffered  an  injury  by  ac- 
cident arising  out  of  and  in  the  course  of 
his  employment.  Trim  Joint  Dist.  School 
v.  Kelly  [1914]  A.  C.  (Eng.)  667,  111  L.  T. 
N.  S.  306,  30  Times  L.  R.  452,  [1914]  W.  N. 
177,  83  L.  J.  P.  C.  N.  S.  220,  58  Sol.  Jo.  493, 
48  Ir.  Law  Times,  141,  [1914]  W.  C.  &  Ins. 
Rep.  359,  7  B.  W.  C.  C.  274. 

This  decision  in  effect  overruled  a  Scotch 
case  in  which  it  was  held  that  a  workman 
assaulted  by  strikers  was  not  injured  by 
accident  arising  out  of  the  employment. 
Murray  v.  Denholm,  [1911]  S.  C.  1087,  48 
Scot.  L.  R.  896,  5  B.  W.  C.  C.  496.  The 
lord  justice-clerk  had  said:  "It  was  the 
act  of  persons  who  had  given  up  their  situ- 
ations for  reasons  of  their  own,  and  who, 
with  the  intention  of  doing  violence,  forced 
their  way  into  the  premises,  and,  having 
forcibly  overcome  the  police,  proceeded  to 
do  violence  to  persons  lawfully  there.  In 
these  circumstances,  how  can  the  injury  suf- 
fered by  the  workmen  be  held  to  have 
arisen  out  of  his  employment?  He  was 
lawfully  employed,  he  was  within  the  en- 
closed premises  of  his  master,  he  had  the 
protection  of  the  police.  It  was  only  by 
the  persistent  violence  of  the  strikers  that 
he  came  into  any  danger.  That  they  de- 
sired to  drive  him  out  of  his  employment  is 
certain.  They  were  venting  their  ill-will 
on  him  because  he  chose  to  accept  employ- 
ment, and  to  work  perfectly  legally  and 
in  the  due  exercise  of  personal  liberty.  Is 
it  to  be  held  that  in  every  case  where 
violence  or  bloodshed  are  resorted  to  in  dis- 
putes as  to  wages,  such  violence  and  blood- 
shed are  to  be  held  to  arise  out  of  the 
employment  of  the  injured  party?  Of 
course,  in  a  sense,  it  is  the  fact  of  his  em- 
ployment that  induces  the  malicious  persons 
to  do  him  injury.  But  while  the  injury  is 
done  because  he  has  undertaken  the  employ- 
ment, it  does  not  arise  out  of  the  employ- 
ment. It  arises  out  of  the  frame  of  mind 
of  the  attacker,  whose  act  is  malicious  and 
criminal." 

Compensation  was  allowed  where  a  cash- 
ier who  was  traveling  with  a  large  sum  of 
L.R.A.1916A. 


struck  by  an  intoxicated  stranger,  and 
fell  and  was  burned  by  the  metal,  suf- 
fered injury  by  accident  arising  out  of 
and  in  the  course  of  his  employment.50 
And  an  engine  driver  who  was  struck  by 
a  stone  wilfully  let  drop  by  a  boy  from 
an  overhead  bridge  was  held  to  have 


money  was  set  upon  and  killed  by  robbers. 
Nisbet  v.  Rayne  [1910]  2  K.  B.  (Eng.)  689, 
80  L.  J.  K.  B.  N.  S.  84,  103  L.  T.  N.  S.  178, 
26  Times  L.  R.  632,  54  Sol.  Jo.  719,  3 
B.  W.  C.  C.  507,  3  N.  C.  C,  A.  368.  Farwell, 
L.  J.,  said:  "I  have  come  to  the  conclusion 
that  there  is  a  distinct  and  well-known 
risk  run  by  cashiers  and  the  like,  who  are 
known  to  carry  considerable  sums  in  cash 
on  regular  days  by  the  same  route  to  the 
same  place,  of  being  robbed,  and,  if  they 
do  their  duty  by  defending  their  charge, 
murdered,  and  that  such  a  risk  is  as  inciden- 
tal to  their  employment  as  the  risk  from 
missiles  from  bridges  is  to  the  employment 
of  engine  drivers,  or  the  risk  of  injury  by 
poachers  to  that  of  gamekeepers." 

Where  the  foreman  of  a  company  em- 
ployed in  moving  furniture  had  the  duty  of 
deciding  between  applicants  for  odd  jobs, 
and  of  letting  out  vans,  and  was  assaulted 
by  a  man  who  had  before  been  an  applicant 
for  odd  jobs,  but  who  on  this  occasion  ap- 
plied for  a  van,  the  injury  was  by  accident 
arising  out  of  the  employment,  although  or- 
dinarily there  was  no  danger  of  assault 
from  the  applicants  for  vans.  Weekes  v. 
Stead  [1914]  W.  N.  (Eng.)  263,  30  Times 
L.  R.  586,  58  Sol.  Jo.  633,  137  L.  T.  Jo.  180, 
[1914]  W.  C.  &  Ins.  Rep.  434,  83  L.  J.  K. 

B.  N.  S.  1542,  111  L.  T.  N.  S.  693,  7  B.  W. 

C.  C.  398,  6  N.  C.  C.  A.  1010.    The  fact  that 
the   yard   in   which  the  assault  took  place 
was   an   exceedingly   rough   place,  and  had 
been  the  scene  of  assaults  in  the  past,  dis- 
tinguishes this  case  from  Mitchinson  v.  Day 
Bros.  (Eng.)  note  52  infra. 

50  In  Shaw  v.  McFarlane  (1914)  52  Scot. 
L.  R.  236,  8  B.  W.  C.  C.  382,  Lord  Dundas 
said-  "In  the  first  place  I  think  it  is  now 
fully  settled  that  a  claim  for  compensation 
under  the  act  is  not  excluded  merely  because 
the  accident  was  caused  by  the  ultroneous 
or  even  the  felonious  act  of  a  third  party, 
provided  the  workman  sustained  't  owing  to 
his  being  specially  exposed  by  the  nature  of 
his  employment  to  the  risk  of  danger  which 
actually  befell  him.  .  .  .  Thus  in  the 
present  case,  if  the  burns  and  bruises  di- 
rectly resulted  from  an  accident,  viz.,  a  fall 
which  by  the  very  nature  of  the  respond- 
ent's employment  was  attended  with  spe- 
cial risk  and  danger  of  such  consequences, 
the  cases  seem  to  show  that  the  accident 
arose  out  of  the  employment,  and  that  the 
court  need  not  and  ought  not  to  inquire 
whether  the  fall  itself  was  caused  by  some- 
thing not  arising  out  of,  and  indeed  quite 
unconnected  with,  the  employment,  viz.,  the 
unwarrantable  blow  of  an  intoxicated 
stranger." 

Lord  Dundas  also  observed:  "Consider- 
ing this  question  apart  from  authority,  and 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


65 


suffered  an  injury  by  accident  arising 
out  of  his  employment ; 61  but  for  the 
most  part  assaults  are  not  considered  as 
incident  to  the  ordinary  work  performed 
by  a  workman.62  No  compensation  is 
recoverable  where  one  workman  is  in- 
jured by  a  stone  thrown  in  anger  by  an- 
other workman.53  There  is  an  apparent 
inconsistency  in  these  decisions,  and 
this  is  emphasized  by  the  fact  that  three 
judges  dissented  in  the  House  of  Lords 
decision  which  is  first  cited. 

An  injury  received  by  a  workman 
while  he  himself  was  deliberately  as- 
saulting a  fellow  workman  was  not 
caused  by  accident  arising  out  of  and  in 
the  course  of  the  employment.54  And 
an  injury  caused  by  an  intentionally 
felonious  assault  by  an  employer  upon 
the  workman  does  not  arise  out  of  the 
employment.55 


Whether  or  not  a  sailor,  who  is  in- 
jured while  on  shore,  before  he  returns 
to  his  vessel,  is  injured  by  accident  aris- 
ing out  of  and  in  the  course  of  his  em- 
ployment, is  a  question  which  has  caused 
considerable  conflict  of  opinion.  It 
would  seem  clear  that  if  he  goes  ashore 
on  some  duty  directly  connected  with 
the  vessel,  he  is  clearly  "in  the  course 
of"  his  employment,  and  the  right  to  com- 
pensation depends  solely  upon  the  cir- 
cumstances of  the  injury.  But  where  he 
goes  to  shore  for  his  own  purposes,  a 
far  more  difficult  situation  arises.  It 
has  been  said  that  "an  accident  befalls 
a  man  'in  the  course  of  his  employment 
if  it  occurs  while  he  is  doing  what  a  man 
so  employed  may  reasonably  do,  within 
a  time  during  which  he  is  employed 
and  at  a  place  where  he  may  rea- 
sonably be  during  that  time."56  So 
it  has  been  held  that  a  salior  who  goes 


simply  upon  the  facts  proved,  and  the 
words  of  the  statute  in  their  natural  and 
ordinary  meaning,  I  should  agree  with  the 
sheriff-substitute  in  holding  that  the  acci- 
dent arose  out  of  the  employment.  One  of 
the  risks  obviously  incidental  to  the  em- 
ployment of  this  ironmoulder's  helper  was 
that  of  working  in  the  immediate  vicinity 
of  the  molten  metal  and  heavy  weights, 
and  on  the  occasion  in  question  he  was 
working  under  these  conditions,  in  a  dan- 
gerous place  and  in  a  stooping  position. 
The  accident  which  befell  him  was,  I  take  it, 
a  fall,  with  the  immediate  result,  naturally 
arising  from  his  position  and  its  attendant 
risks,  of  burns  and  bruises.  I  should  have 
thought  it  idle  to  contend  that  because  the 
accident,  i.  e.,  the  fall,  was  caused  by  a  blow 
struck  by  an  outsider,  we  are  to  disregard 
the  causa  proxima  of  the  injuries,  viz.,  the 
fall  in  contact  with  hot  metal  and  crush- 
ing weights,  and  ascribe  the  injuries  to  a 
more  remote  cause,  viz.,  the  blow,  which 
clearly  did  not  arise  out  of  the  employ- 
ment." 

siChallis  v.  London  &  S.  W.  R.  Co. 
[1905]  2  K.  B.  (Eng.)  154,  74  L.  J.  K.  B. 
N.  S.  569,  53  Week.  Rep.  613,  93  L.  T.  N.  S. 
330,  21  Times  L.  R.  486.  Collins,  M.  R., 
said:  "I  do  not  think  that  there  was 
anything  in  the  fact  that  the  stone  was 
wilfully  dropped,  to  prevent  what  hap- 
pened from  being  an  accident  from  the 
standpoint  of  the  person  who  suffered 
through  it.  The  question  remains  whether 
it  was  an  accident  which  arose  out  and  in 
the  'course  of  the  deceased's  employment. 
.  .  .  In  deciding  that  question  we  should 
[not]  be  justified  in  leaving  out  of  sight 
what  is  matter  of  common  knowledge  and 
experience  in  relation  to  the  subject  with 
which  we  are  dealing;  and  therefore  we 
must,  I  think,  approach  the  question  wheth- 
er what  occurred  was  a  risk  incidental  to 
the  employment  of  an  engine  driver  from 
the  standpoint  that  a  train  in  motion  has 
great  attractions  for  mischievous  boys  as  an 
object  at  which  to  discharge  missiles." 
L.R.A.1916A. 


52  No    compensation   was    allowed    where 
the  applicant  was  employed  as  a  cook  in  a 
hotel  wherein  the  kitchen  and  the  bar  were 
on  the  same  level,  and  a  drunken  customer 
came  out  of  the  bar  into  the  kitchen,  where 
he  had  no  business  to  be,  and  made  a  rush 
at  the  cook,  who,  in  trying  to  avoid  him, 
put  her  arm  through  a  glass  door.    Murphy 
v.  Berwick    (1909)   43  Ir.  Law  Times,  126. 
Walker,  L.   C.,  said   that  the  employer   is 
not   liable   for  the  tortious  act  of  a  third 
party,  where  such   act  is  not  a  risk  reas- 
onably to  be  contemplated  by  the  employee 
in   taking  the  employment. 

Nor  where  a  foreman  of  sewage  works 
was  stabbed  by  a  drunken  man  during  a 
fight  on  the  street  where  the  pipes  were 
being  laid.  Collins  v.  Collins  [1907]  2  I.  R. 
(Ir.)  104. 

The  risk  of  being  assaulted  by  a  drunken 
man  is  not  in  any  way  especially  connected 
with  or  incident  to  employment  as  a  carter. 
Mitchinson  v.  Day  Bros.  [1913]  1  K. 
B.  (Eng.)  603,  82  L.  J.  K.  B.  N.  S.  421, 
108  L.  T.  N.  S.  193,  29  Times  L.  R.  267, 
57  Sol.  Jo.  300,  [1913]  W.  N.  36  [1913] 
W.  C.  &  Ins.  Rep.  324,  6  B.  W.  C.  C.  190. 

53  Armitage   v.   Lancashire    &    Y.   R.   Co. 
[1902]  2  K.  B.   (Eng.)   178,  71  L.  J.  K.  B. 
N.   S.  778,   66  J.   P.   613,  86  L.   T.  N.   S. 
883,  18  Times  L.  R.  648. 

An  injury  to  a  boy  engaged  in  picking 
stone  and  "bats"  out  of  coal  running  past 
in  a  belt  and  who  was  hit  in  the  eyes  by  a 
stone  maliciously  thrown  by  a  boy  who 
was  likewise  engaged,  did  not  arise  out  of 
the  employment.  Clayton  v.  Hardwick 
Colliery  Co.  (1914)  7  B.  W.  C.  C.  (Eng.) 
643 

54  Shaw  v.  Wigan  Coal  &  I.  Co.   (1909)  3 
B.  W.  C.  C.  (Eng.)  81. 

55  Blake  v.  Head  [1912]  W.  C.  Rep.  (Eng.) 
198,  106  L.  T.  N.   S.  822,  28  Times  L.  R. 
321,  5  B.  W.  C.  C.  303.    It  was  pointed  out 
that  the  workman's  remedy  was  by  an  ac- 
tion for  assault. 

56  Lord  Loreburn  in  Moore  v.  Manchester 
Liners   [1910]  A.  C.   (Eng.)   498.     He  fur- 


66 


WORKMEN'S  COMPENSATION. 


on  shore  with  leave  is  still  in  the  course 
of  his  employment,  although  he  has  gone 
there  for  purposes  of  his  own.57  In 
several  cases  in  which  this  principle  has 
been  applied,  the  sailor  took  an  unusual 
or  dangerous  method  to  reach  the  vessel 
from  the  quay,  but  this  fact  was  consid- 
ered insufficient  to  prevent  recovery.58 

But  although  a  sailor  may  be  "in  the 
course  of"  his  employment  while  return- 


ing from  shore,  where  he  has  been  on 
his  own  business,  he  does  not  suffer  in- 
jury by  accident  arising  "out  of"  his 
employment,  where  the  injury  occurs  be- 
fore he  has  reached  the  gangway  or 
other  approach  to  the  vessel,  although 
he  is  on  the  dock,  making  his  way  to  the 
vessel.  Risks  of  such  injuries  are  not 
incident  to  the  employment.59  The  same 
rule  would,  of  course,  apply  in  the  case- 


ther  said:  "  It  may  seem  at  first  sight 
that  this  is  a  formidable  interpretation. 
It  is  not  so  in  reality,  because  in  every  case 
the  accident,  to  be  a  ground  for  compensa- 
tion, must  also  be  one  arising  out  cf  the 
employment  [and  it  is  not  often  that  such 
risks  are  run,  except  at  the  place  where 
the  man's  work  is  to  be  done].  A  seaman, 
for  example,  who  is  ashore  on  leave,  and  is 
knocked  down  by  a  wagon,  is  not  injured  by 
an  accident  arising  out  of  his  employment. 
But  if  he  is  sent  ashore  on  ship's  business, 
he  is  doing  that  errand  in  the  same  posi- 
tion as  a  messenger,  and  is  protected 
against  the  same  risks." 

57  "The  return  of  the  man   (a  sailor)   to 
his  ship  was  in  the  course  of  his  employ- 
ment."    Lord  Loreburn,  L.  C.,  in  Kitchen- 
ham    v.    The    Johannesburg    [1911]    A.    C. 
(Eng.)   417,  [1911]   W.  N.  142,  80  L.  J.  K. 
B.  N.  S.  1102,  105  L.  T.  N.  S.  118,  27  Times 
L.  R.  504,  55  Sol.  Jo.  599,  4  B.  W.  C.  C.  311. 

58  in  Robertson  v.  Allan  Bros.   (1908)   77 
L.  J.  K.  B.  N.  S.  (Eng.)  1072,  98  L.  T.  N.  S. 
821,  1  B.  W.  C.  C.  172,  compensation  was 
allowed  where  a  ship  steward  on  returning 
from  shore,  where  he  had  gone  for  his  own 
purposes    during    a    time    when    he    had    a 
right  to  be  on   shore,  attempted   to   board 
the  vessel  by  means  of  the  cargo  skid,  as  the 
sailors  were  in  the  custom  of  doing,  and  fell, 
receiving  injuries  from  which  he  died. 

Where  a  fireman  on  a  ship  fell  from  a 
ladder  which  was  the  only  means  of  access 
to  the  ship  as  he  was  returning  from  shore, 
whence  he  had  gone  to  make  certain  pur- 
chases for  himself  the  injury  arises  in  the 
course  of  the  employment.  Moore  v.  Man- 
chester Liners  [1910]  A.  C.  (Eng.)  498,  79 
L.  J.  K.  B.  N.  S.  1175,  103  L.  T.  N.  S. 
226.  26  Times  L.  R.  618,  54  Sol.  Jo.  703,  3 
B.  W.  C.  C.  527,  reversing  [1909]  1  K.  B. 
(Eng.)  417,  100  L.  T.  N.  S.  164,  78  L.  J. 
K.  B.  N.  S.  463,  25  Times  L.  R.  202. 

See  also  Kearon  v.  Kearon  (1911)  45  Ir. 
Law  Times,  96,  4  B.  W.  C.  C.  435,  cited  in 
note  61  infra. 

59  Recovery  was  refused  where  there  is  no 
proof  that  a  sailor  who  had  been  on  shore 
on  leave,  and  was  drowned  while  returning 
to    the    vessel,    had    reached    the    gangway 
when  he  fell.    Kitchenham  v.  The  Johannes- 
burg  [1911]   A.  C.   (Eng.)   417,  80  L.  J.  K. 

B.  N.    S.    1102,    105    L.    T.    N.    S.    118,   27 
Times  L.  R.  504,  55  Sol.  Jo.  599,  4  B.  W. 

C.  C.  311,  affirming  the  Court  of  Appeal  in 
[1911]   1  K.  B.   (Eng.)   523,  80  L.  J.  K.  B. 
N.  S.  313,  103  L.  T.  N.  S.  778,  27  Times  L. 
R.  124.  55  Sol.  Jo.   124,  4  B.  W.  C.  C.  91 
L.R.A.1916A. 


(accident  arose  in  the  course  of  his  employ- 
ment, but  not  out  of  it). 

And  where  a  sailor  returning  to  his  ship 
from  a  week-end  at  his  son's  house  slipped 
on  some  public  steps  leading  to  the  river. 
Kelly  v.  The  Foam  Queen  (1910)  3  B.  W. 
C.  C.  (Eng.)  113. 

And  where  the  master  of  a  vessel,  who 
goes  ashore  for  his  own  purposes,  as  he 
has  a  right  to,  falls  off  the  pier  as  he  is 
waiting  for  a  boat  from  his  vessel.  Fletcher 
v.  The  Duchess  [1911]  A.  C.  (Eng.)  671,  81 
L.  J.  K.  B.  N.  S.  33,  55  Sol  Jo.  598,  4  B.  W. 
C.  C.  317,  105  L.  T.  N.  S.  121. 

And  where  a  seaman  who  had  gone  on- 
shore with  leave,  for  his  own  purposes,  and 
found  upon  his  return  that  the  ship  had 
moved  to  another  part  of  the  dock,  made 
his  way  along  the  dockside  where  there 
were  many  railway  lines,  and  was  struck 
by  a  train  and  injured.  Biggart  v.  The 
Minnesota  (1911)  5  B.  W.  C.  C.  (Eng.)  68. 

The  risk  of  falling  off  the  edge  of  a  quay 
into  the  water  is  common  to  everyone,  and 
such  an  accident,  happening  to  a  sailor  who 
had  been  on  land  and  was  returning  to  hi* 
vessel,  did  not  arise  out  of  the  employment, 
where  he  had  not  reached  the  gangway. 
Craig  v.  The  Calabria  [1914]  S.  C.  762,  2 
Scot.  L.  T.  30,  51  Scot.  L.  R.  657,  7  B. 
W.  C.  C.  932.  Lord  Dundas  said:  "I  think 
the  case  would  have  been  materially  differ- 
ent if,  at  the  time  of  the  accident,  the  man 
had  reached  the  gangway,  and  fallen  off  it 
into  the  water,  and  the  risk  was  one  due  to- 
the  means  of  access  to  the  ship." 

The  death  of  a  ship's  engineer  did  not 
arise  out  of  and  in  the  course  of  his  em- 
ployment, where  in  attempting  to  reach  his 
ship,  about  100  yards  from  the  shore,, 
where  he  had  been  on  a  legitimate  purpose, 
he  entered  a  life  boat  usually  manned  by 
six  men,  and  tried  alone  to  reach  the  ship 
by  paddling  with  the  rudder,  but  was  car- 
ried out  to  sea  and  was  drowned.  Halvor- 
sen  v.  Salvesen  (1911)  49  Scot.  L.  R.  27. 

The  finding  by  the  county  court  judge 
that  a  fireman  on  a  vessel  was  not  in  the 
ambit  of  his  employment  will  be  sustained 
where  the  evidence  showed  that  he  *had 
gone  on  shore,  and  at  the  time  of  the- 
accident  was  walking  along  a  jetty  so  as  to- 
get  near  to  his  vessel  to  hail  it  for  a  boat, 
and  there  was  no  evidence  as  to  when  he 
went  ashore,  or  whether  he  was  on  the 
ship's  business,  or  whether  he  had  leave  or 
not.  Dixon  v.  The  Ambient  [1912]  W.  C. 
Rep.  (Eng.)  224,  5  B.  W.  C.  C.  428. 

A  fireman  who  goes  ashore  with  leave  to 
buy  provisions,  and  is  drowned  on  his  return 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


67 


of  a  sailor  leaving  the  vessel.60  But  if  the 
sailor  has  reached  the  gangway  upon  his 
return  to  the  vessel,  the  accident  may  be 
found  to  arise  out  of  the  employment.61 
In  the  cases  cited  below  it  was  held 
that  a  sailor  who,  upon  returning  from 
shore,  was  injured  while  using  a  ladder 
or  gangway  or  other  means  of  access  to 
the  vessel,  suffered  injury  by  accident 
arising  out  of  the  employment,  although 
the  special  point  decided  was  that  the  i 


injury  occurred  in  the  course  of  the  em- 
ployment.62 

The  Irish  court  of  appeal  has  appar- 
ently taken  the  position  that  the  sailor 
must  be  back  upon  the  vessel  itself  be- 
fore he  can  be  held  to  have  returned  to 
his  employment.63 

The  burden  of  proving  that  an  acci- 
dent arose  out  of  and  in  the  course  of 
the  workman's  employment  lies  on  the 
plaintiff.64  It  is  not  sufficient  to  prove 


to  the  vessel  by  falling  off  the  pier,  is  not 
within  the  scope  of  the  act,  although  the 
provision  in  the  contract  of  service,  that 
the  master  was  to  supply  the  sailors  with 
provision  was  stricken  out,  and  across  it 
was  written,  "Crew  to  provide  their  own 
provision."  Parker  v.  The  Black  Rock 
[1914]  2  K.  B.  (Eng.)  39,  83  L.  J.  K.  B. 
N.  S.  421,  110  L.  T.  N.  S.  520,  30  Times 
L.  R.  271,  58  Sol.  Jo.  285,  [1914]  W. 
N.  43,  [1914]  W.  C.  &  Ins.  Rep.  117,  7 
B.  W.  C.  C.  152.  The  position  taken  by 
the  court  was  that,  notwithstanding  he 
was  to  provide  for  himself,  this  did  not 
constitute  a  contractual  obligation,  and  con- 
sequently it  must  be  held  that  he  went 
ashore  upon  his  own  business.  This  de- 
cision was  sustained  by  the  House  of  Lords, 
[1915]  A.  C.  (Eng.)  725,  31  Times  L.  R.  432, 
[1915]  W.  N.  204. 

60  Where  a  sailor  upon  the  completion  of 
the   voyage   had   been    discharged   and   had 
left  the  ship,  but  was  on  a  floating  stage  to 
which  the  ship  was  moored,  and  was  mak- 
ing his  way  to  the  shore,  and  fell  between 
it  and  the  quay  and  was  drowned,  the  acci- 
dent did  not  arise  in  the  course  of  his  em- 
ployment.     Cook   v.   The   Montreal    [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  206,  108  L.  T.  N.  S. 
164,  29  Times  L.  R.  233,  57  Sol.  Jo.  282,  6 
B.  W.  C.  C.  220. 

61  Recovery   is   allowable   where   a   sailor 
who  had  been  on  shore  on  leave,  and  was 
drowned  while  returning  to  the  vessel,  fell 
after  he  had  reached  the  gangway  and  was 
crossing  it.     Leach  v.  Oakley   [1911]    1  K. 
B.    (Eng.)    523,  80  L.  J.  K.  B.  N.  S.  313, 
103  L.  T.  N.  S.  778,  27  Times  L.  R.  124, 
55  Sol.  Jo.  124,  4  B.  W.  C.  C.  91. 

A  sailor  returning  to  his  vessel  from  the 
shore  where  he  had  been  on  leave,  on  busi- 
ness of  his  own,  is  entitled  to  compensation 
for  injuries  received  in  jumping  from  the 
pier  to  the  vessel,  there  being  no  other 
means  of  getting  on  board.  Kearon  v. 
Kearon  (1911)  45  Ir.  Law  Times,  96,  4  B. 
W.  C.  C.  435. 

A  sailor  who  upon  returning  from  shore 
had  passed  over  the  gangway,  and  had  one 
foot  upon  the  rail  and  one  upon  the  deck, 
when  he  overbalanced  and  fell  into  the 
water  and  drowned,  suffered  death  from 
accident  arising  "out  of  and  in  the  course 
of  his  employment."  Canavan  v.  The  Uni- 
versal (1910)  3  B.  W.  C.  t;.  (Eng.)  355. 

62  Robertson  v.  Allan  Bros.   (1908)   77  L. 
J.  K.  B.  N.  S.  (Eng.)   1072,  98  L.  T.  N.  S. 
821,  1  B.  W.  C.  C.  172,  Kearon  v.  Kearon 
(1911)  45  Ir.  Law  Times,  96,  4  B.  W.  C.  C. 
L.R.A.1916A. 


435,  and  Moore  v.  Manchester  Liners  ]1910} 
A.  C.  (Eng.)  498,  79  L.  J.  K.  B.  N.  S.  1175T 
103  L.  T.  N.  S.  226,  26  Times  L.  R.  618,  54 
Sol.  Jo.  703,  3  B.  W.  C.  C.  527,  reversing 
the  court  of  appeal  [1909]  1  K.  B.  (Eng.) 
417,  100  L.  T.  N.  S.  164,  78  L.  J.  K.  B.  N. 
S.  463,  25  Times  L.  R.  202.  These  cases  are 
cited  in  note  58  supra. 

63  The  injury  to  a  sailor  who  fell  from 
the  gangway  into  the  water  while  return- 
ing to  his  ship  from  a  trip  on  shore,  which 
was  not  connected  with  his  employment, 
does  not  arise  out  of  and  in  the  course  of 
his  employment.  Hyndman  v.  Craig  (1911) 
45  Ir.  Law  Times,  11,  4  B.  W.  C.  C.  438.  Sir 
Samuel  Walker,  L.  C.,  in  a  very  brief  para- 
graph upholding  the  decision  of  the  recorder 
denying  recovery,  said:  "Was  the  deceased 
in  his  ship  when  he  met  with  the  accident? 
He  was  still  using  the  means  of  getting, 
there." 

6*McNicholas  v.  Dawson   (1899)   68  L.  J.. 
Q.  B.  N.  S.  (Eng.)  470  [1899]  1  Q.  B.  773,. 
80  L.  T.  N.  S.  317,  47  Week.  Rep.  500,  15- 
Times  L.  R.  242;  Pomfret  v.  Lancashire  &. 
Y.  R.  Co.  [1903]  2  K.  B.   (Eng.)   718,  72  L. 
J.  K.  B.  N.  S.  729,  52  Week.  Rep.  66,  89' 
L.  T.  N.  S.  176,  19  Times  L.  R.  649;   Mc- 
Donald v.  The  Banana  [1908]  2  K.  B.  (Eng.y 
926,  78  L.  J.  K.  B.  N.  S.  26,  99  L.  T.  N.  S. 
671,  24  Times  L.  R.  887,  52  Sol.  Jo.  741; 
Charles  v.  Walker    (1909)    25   Times  L.  R. 
(Eng.)   609;  Hewitt  v.  The  Duchess  [1910] 
1  K.  B.    (Eng.)    772,  79  L.  J.  K.  B.  N.  S. 
867,  102  L.  T.  N.  S.  204,  26  Times  L.  R. 
300,  54   Sol.  Jo.   325,  3  B.   W.   C.   C.   239; 
Jenkins  v.  Standard  Colliery  Co.  (1911)  28' 
Times  L.  R.  (Eng.)  7  (death  caused  by  blood! 
poisoning  following  an  abrasion  of  the  skin ; 
nothing  to  show  that  the  abrasion  was  re- 
ceived in  the  employment) ;   Karemaker  v. 
The  Corsican   (1911)   4  B.  W.  C.  C.   (Eng.> 
295    (sailor    suffering    from    frost-bite    did 
not  prove  that  it  was  due  to  any  particular 
circumstance  of  the  employment) ;   O'Brien 
v.    Star   Line    [1908]    S.    C.    (Scot.)    1258; 
Carrick    v.   North    British    Locomotive    Co. 
[1909]  S.  C.  (Scot.)  698;  M'Adam  v.  Harvey 
[1903]  2  I.  R.  (Ir.)  511;  Gatton  v.  Limerick 
S.    S.   Co.    (1910)    44   Ir.   Law    Times    141 
[1910]  2  I.  R.  561;  Rayman  v.  Fields  (1910) 
102  L.  T.  N.  S.  (Eng.)  154,  26  Times  L.  R. 
274,  3  B.  W.  C.  C.   123;   Astley' v.  Evans 
[1911]  1  K.  B.  (Eng.)   1036,  80  L.  J.  K.  B. 
N.  S.  731,  104  L.  T.  N.  S.  373,  4  B.  W.  C. 
C.  209,  3  N.  C.  C.  A.  239;  Farmer  v.  Stafford 
(1911)  4  B.  W.  C.  C.  (Eng.)  223;  Furnivall 
v.  Johnson's  Iron  &  Steel  Co.   (1911)   5  B. 
W.   C.   C.    (Eng.)    43;    Charvill   v.   Manser 


68 


WORKMEN'S  COMPENSATION. 


that  a  workman  met  with  an  accident 
in  the  course  of  the  employment ;  it  must 
also  be  proved  that  the  accident  arose 
"out  of"  the  employment.66  The  finding 
that  the  accident  arose  out  of  and  in  the 


course  of  the  employment  cannot  be 
based  on  mere  surmise,  conjecture,  and 
guess.66  But  if  the  claimant  shows  that 
the  injury  was  one  that  might  naturally 
follow  an  accident  suffered  in  the  em- 


[1912]  W.  C.  Rep.  (Eng.)  193,  5  B.  W. 
C.  C.  385;  Stapleton  v.  Dinnington  Main 
Coal  Co.  (1912)  107  L.  T.  N.  S.  (Eng.)  247, 
5  B.  W.  C.  C.  602;  Marshall  v.  Sheppard 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  477,  6  B. 
W.  C.  C.  571;  Sherwood  v.  Johnson  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  57,  5  B.  W.  C.  C. 
686;  Morgan  v.  Cynon  Colliery  Co.  (1915) 
8  B.  W.  C.  C.  (Eng.)  499;  Hopley  v.  Pool 
(1915)  8  B.  W.  C.  C.  (Eng.)  512. 

The  burden  is  upon  the  dependent  of  a 
deceased  workman  who  was  employed  as  an 
•engine  driver,  to  show  that,  where  after 
waiting  for  a  while  on  his  engine  at  a  sid- 
ing for  an  express  train  to  pass,  he  got 
down  from  his  engine  and  left  the  stoker  in 
charge,  he  was  in  the  course  of  his  employ- 
ment. Dyhouse  v.  Great  Western  R.  Co. 
(1913)  109  L.  T.  N.  S.  (Eng.)  193,  [1913] 
W.  C.  &  Ins.  Rep.  491,  6  B.  W.  C.  C.  691. 

espomfret  v.  Lancashire  &  Y.  R.  Co. 
[1903]  2  K.  B.  (Eng.)  718,  72  L.  J.  K.  B. 
N.  S.  729,  52  Week.  Rep.  66,  89  L.  T.  N.  S. 
176.  Collins,  M.  R.,  said:  "The  burden, 
and  the  whole  burden,  of  proving  the  con- 
ditions essential  to  the  obtaining  an  award 
of  compensation,  rests  upon  the  applicant, 
and  upon  nobody  else,  and  if  he  leaves  the 
case  in  doubt  as  to  whether  those  conditions 
are  fulfilled  or  not,  where  the  known  facts 
are  equally  consistent  with  their  having 
been  fulfilled  or  not  fulfilled,  he  has  not 
discharged  the  onus  which  lies  upon  him. 
In  my  opinion,  the  evidence  in  the  present 
case  is  quite  consistent  with  the  view  that 
the  accident  happened  in  consequence  of 
something  which  did  not  arise  out  of  the 
employment." 

66Burwash  v.  Leyland  (1912)  107  L.  T. 
N.  S.  (Eng.)  735,  28  Times  L.  R.  546,  54 
Sol.  Jo.  703,  [1912]  W.  C.  Rep.  400,  5  B.  W. 
C.  C.  663. 

Where  upon  medical  evidence  the  arbi- 
trator finds  that  the  heat  apoplexy  from 
from  which  a  ship  stoker  was  suffering 
might  have  been  caused  by  the  heat  of  the 
sun  or  by  the  heat  of  the  stoke  holes,  the  ar- 
bitrator is  justified  in  holding  that  the 
evidence  will  not  permit  him  to  draw  the 
inference  that  the  injury  was  caused  by  an 
accident  arising  out  of  and  in  the  course  of 
the  employment.  Olson  v.  The  Dorset 
(1913)  6  B.  W.  C.  C.  (Eng.)  658. 

The  onus  has  not  been  discharged  by  the 
dependents  of  a  craneman  in  the  boiler 
shop  of  locomotive  works,  who  was  found 
crushed  on  the  top  of  a  crane  in  connection 
with  which  he  had  no  duty  to  perform 
where  his  presence  thereon  was  wholly  un- 
accounted for.  Millers  v.  North  British 
Locomotive  Co.  [1909]  S.  C.  698,  46  Scot. 
L.  R.  755,  2  B.  W.  C.  C.  80. 

Where  the  applicant  had  suffered  an  in- 
jury to  his  hand  in  1902,  and  in  1908  his 
hand  became  inflamed,  swollen,  and  pain- 
L.R.A.1916A. 


ful,  and  incapacitated  him  for  work,  but  the 
medical  evidence  was  to  the  effect  that 
such  incapacity  was  not  caused  by  the  first 
injury,  but  by  another  injury,  as  to  which 
there  was  no  evidence  when  it  occurred, 
an  award  of  compensation  given  on  the 
theory  that  the  incapacity  was  the  result 
of  the  first  injury  will  be  set  aside.  Noden 
v.  Galloways  [1912]  1  K.  B.  (Eng.)  46, 
[1911]  W.  N.  192,  81  L.  J.  K.  B.  N.  S.  28, 
105  L.  T.  N.  S.  567,  28  Times  L.  R.  5,  55 
Sol.  Jo.  838,  [1911]  W.  C.  Rep.  63,  5  B. 
W.  C.  C.  7. 

A  county  court  judge  is  not  justified  in 
drawing  an  inference  which  is  only  based 
upon  surmise  and  conjecture.  Pugh  v.  Dud- 
ley [1914]  W.  C.  &  Ins.  Rep.  (Eng.)  265,  7 

B.  W.  C.  C.  528.     In  this  case,  an  explosion 
of  powder  caused  the  death  of  the  work- 
man,   and   the    explosion    must   have    been 
due  to  the  fact  that  the  powder  had  been 
uncovered.      The   county  court   judge   drew 
the  inference  that  as  the  workman  was  the 
only  person  who  was  handling  the  powder, 
he  himself  must  have  uncovered  it;  but  the 
court  of  appeal  held  that  such  an  inference 
was  wholly  unwarranted. 

A  county  court  judge's  explanation  that 
an  accident  arose  out  of  and  in  the  course 
of  the  employment,  if  founded  merely  on 
surmise,  cannot  be  sustained,  although  such 
explanation  is  by  no  means  improbable. 
Booth  v.  Leeds  &  L.  Canal  Co.  [1914]  W.  C. 
&  Ins.  Rep.  (Eng.)  310,  7  B.  W.  C.  C.  434. 

The  county  court  judge  is  not  justified 
in  drawing  the  inference  of  injury  from 
accident  arising  out  of  and  in  the  course  of 
the  employment,  where  a  collier  died  of 
blood  poisoning  due  to  an  abscess  in  the 
knee,  and  there  was  no  evidence  as  to  how 
the  abscess  was  caused,  except  that  his  work 
was  in  a  very  narrow  space,  which  necessi- 
tated his  working  on  his  knee.  Howe  v. 
Fernhill  Collieries  [1912]  W.  C.  &  Ins.  Rep. 
(Eng.)  408,  107  L.  T.  N.  S.  508,  5  B.  W. 

C.  C.  629. 

That  an  abrasion  on  a  collier's  thumb 
might  have  been  caused  by  his  work  is  not 
sufficient  to  entitle  him  to  compensation. 
Jenkins  v.  Standard  Colliery  Co.  (1911)  105 
L.  T.  N.  S.  (Eng.)  730,  28  Times  L.  R.  7,  5 
B.  W.  C.  C.  71. 

Coal  dust  found  in  a  scratch  is  not  suf- 
ficient to  show  that  the  collier  received  the 
scratch  while  in  his  employment.  Wood  v. 
Davis  (1911)  5  B.  W.  C.  C.  (Eng.)  113. 

A  workman  who  cut  his  finger  at  home, 
and  subsequently  contracted  blood  poison, 
cannot  recover  compensation,  where  the  poi- 
son germs  might  have  been  conveyed  into 
the  wound  in  any  one  of  several  ways  other 
than  the  emplovment.  Chandler  v.  Great 
Western  R.  Co.  "[1912]  W.  C.  Rep.  (Eng.) 
169,  106  L.  T.  N.  S.  479,  5  B.  W.  C.  C.  254. 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


69 


ployment,  the  onus  is  upon  the  employer 
to  show  that  the  injury  was  due  to  some 
other  cause.67 


the  course  of  and  out  of  the  employ- 
ment.68 But  where  a  sailor  falls  over- 
board in  some  unexplained  way  while 


The  unexplained  drowning  of  a  sea-  discharging  his  duty,  the  inference  may 
man  not  in  the  discharge  of  his  actual  be  drawn  that  the  accident  arose  not 
duties  furnishes  no  ground  for  drawing  j  only  in  the  course  of  but  also  out  of  the 
the  inference  that  the  accident  arose  in  '  employment.69 


67  Where  the  workman  felt  a  pain  in  his 
knee  as  he  was  rising  from  a  kneeling  po- 
sition, and  it  was  found  that  the  cartilage 
of  his   knee  was   ruptured,  he   suffered   an 
injury  by  accident,  entitling  him   to  com- 
pensation,   although    he    had,    about    three 
years  previously,  while  in  the  employment 
of  other  employers,  wrenched  his  knee  and 
received  compensation  for  some  weeks,  but 
thereafter  had  worked  continuously  as  an 
ordinary  workman  to  the  time  of  the  pres- 
ent injury.    Borland  v.  Watson  [1912]  S.  C. 
15,  49  Scot.  L.  R.  10,  5  B.  W.  C.  C.  514. 

68  In  Marshall  v.  The  Wild  Rose   [1910]  - 
A.  C.  (Eng.)  486,  79  L.  J.  K.  B.  N.  S.  912,  \ 
103  L.  T.  N.  S.   114,  26  Times  L.  R.  608,  I 
54    Sol.    Jo.    678,    3    B.   W.    C.    C.    514,    11  ; 
Asp.  Mar.  L.  Cas.  409,  48  Scot.  L.  R.  701 ,  | 
affirming    [1909]    2    K.    B.    (Eng.)    46,    78  i 
L.  J.  K.  B.  N.  S.  536,  100  L.  T.  N.  S.  739, 
25  Times  L.  R.  452,  52  Sol.  Jo.  448,  2  B.  W. 
C.  C.  76,  a  sailor  left  his  berth  on  a  hot 
night  to  cool  himself  on  the  deck,  and  his 
body  was  found  the  next  morning  under  the  | 
gunwale,  where  members  of  the  crew  some-  j 
times  sat  down.    No  more  was  known  about 
the  occurrence.     Although  the  court  of  ap-  j 
peal  conceded  or  took   it  for  granted  that  j 
his  death  was  due  to  accident,  recovery  was  I 
denied   on   the  ground   that   the   death   did  I 
not  arise  out  of  as  well  as  in  the  course  of  ! 
the  employment.    The  language  used  in  the  i 
judgment  in  the  House  of  Lords  indicated  j 
that  in  their  opinion  it  could  not  be  inferred  I 
that  death  was  due  to  accident. 

In  Bender  v.  The  Zent   [1909]    2  K.  B. 
(Eng.)  41,  78  L.  J.  K.  B.  N.  S.  533,  100  L.  , 
T.  N.  S.  639,  2  B.  W.  C.  C.  22,  where  a  j 
ship's  cook  on  a  perfectly  calm  day  in  mid 
Atlantic  went  on  deck  about  5  o'clock   in  j 
the  morning,  it  being  daylight,  and  was  last  | 
seen    looking    over    the    rail,    and    nothing  | 
more  was  known  of  him,  his  absence  from 
the  ship  being  discovered  half  an  hour  later, 
it  was  held  that  the  burden  of  proving  that 
the  accident  causing  death  arose  "out  of"  i 
as  well  as  "in  the  course  of"  the  employ- 
ment had  not  been  discharged  by  the  ap-  \ 
plicant. 

The  widow  of  the  engineer  of  a  ship  ly-  ! 
ing  in  a  dry  dock  cannot  recover  compen- 
sation,  where   the   only   evidence   produced  ! 
by  her  was  that  the  engineer,  after  com-  : 
pleting    his    morning's    work    at    the    ship, 
went  home  to  his  dinner,  and  that  he  was  , 
seen  talking  to  somebody  on  his  way  back 
just   prior    to   the    accident,    and    that    his  i 
body   was   subsequently   found   in   the   dry 
dock.    Gilbert  v.  The  Nizam  [1910]  2  K.  B.  I 
(Eng.)   555,  79  L.  J.  K.  B.  N.  S.  1172,  103 
L.  T.  N.  S.  163,  26  Times  L.  R.  604.  3  B.  W. 
C.  C.  455. 

Where  the  only   evidence   in  an   applica-  i 
L.R.A.1916A. 


tion  for  compensation  on  account  of  the 
death  of  a  donkeyman  on  a  steamship  was 
an  extract  from  the  log,  which  stated  that 
the  deceased,  while  returning  to  the  ship 
more  or  less  under  the  influence  of  liquor, 
refused  the  aid  of  the  night  watchman  or 
policeman,  and  on  reaching  the  top  step  of 
the  gangway  suddenly  overbalanced  and 
fell,  the  applicant  failed  to  prove  that  the 
accident  arose  out  of  and  in  the  course  of 
his  employment.  McDonald  v.  The  Banana 
[1908]  2  K.  B.  (Eng.)  926,  78  L.  J.  K.  B. 
N.  S.  26,  99  L.  T.  N.  S.  671,  24  Times  L.  R. 
887,  52  Sol.  Jo.  741,  1  B.  W.  C.  C.  185. 

The  finding  of  the  county  court  judge 
that  the  accident  did  not  arise  out  of  the 
employment  will  be  sustained,  where  the 
evidence  showed  that  a  sailorx  was  seen  at 
8  P.  M.,  about  to  leave  his  ship  to  get  pro- 
visions, and  his  body  was  found  the  next 
morning  in  the  dock  10  or  15  feet  from  the 
gangway.  Mitchell  v.  The  Saxon  (1912) 

5  B.  W.  C.  C.  (Eng.)  623. 

The  county  court  judge  is  justified  in 
holding  that  he  was  not  satisfied  that  the 
death  of  the  deceased  was  due  to  accident 
arising  out  of  and  in  the  course  of  his 
employment,  where  the  deceased  was  a 
barge  boatman,  and  had  been  talking  with 
a  fellow  boatman  on  the  wharf,  and  then 
walked  away,  carrying  a  boat  hook  to  take 
his  own  full  barge  down  to  the  dock,  and 
six  or  seven  minutes  later  the  fellow  boat- 
man saw  the  body  in  the  water  90  yards 
from  the  spot  where  they  had  parted,  and 
about  20  yards  from  his  barge.  Bines  v. 
Gueret  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  158, 

6  B.  W.  C.  C.  120. 

69  Tffere  was  evidence  to  support  the  in- 
ference that  the  accident  arose  out  of  the 
employment,  where  the  workman  was  a  ship 
fireman,  ana  it  was  proved  that  in  tropical 
regions,  where  the  vessel  was,  it  was  the 
habit  of  the  firemen  to  go  on  deck  for 
fresh  air,  and  that  the  fireman  in  question 
had  worked  longer  hours  than  usual,  owing 
to  the  ship  being  shorthanded,  and  was  seen 
coming  up  on  deck  for  water  shortly  be- 
fore he  was  last  seen  in  the  stoke  hole,  and 
subsequently  disappeared  in  some  unex- 
plained manner.  Lee  v.  Stag  Line  (1912) 
107  L.  T.  N.  S.  (Eng.)  509,  56  Sol.  Jo. 
720,  [1912]  W.  C.  Rep.  398,  5  B.  W.  C.  C. 
660. 

Where  an  officer  of  a  vessel  who  had  pre- 
viously complained  of  feeling  dizzy  disap- 
peared in  broad  daylight  and  calm  weather 
from  the  deck,  where  he  had  been  on  duty. 
The  Swansea  Vale  v.  Rice  (1911)  104  L.  T. 
N.  S.  (Eng.)  658,  27  Times  L.  R.  440,  55 
Sol.  Jo.  497,  4  B.  W.  C.  C.  298,  48  Scot.  L. 
R.  1095  (there  was  no  suggestion  of  murder 
or  suicide.)  The  order  of  court  of  appeal 


70 


WORKMEN 'S  COMPENSATION. 


Although  the  accident  must  be  proved, 
and  it  cannot  be  based  on  mere  surmise 
or  guess,  nevertheless  it  may  be  proved 
by  circumstantial  evidence.  In  the  note 


in  which  it  was  held  that  the  circum- 
stances surrounding  the  accident  were 
sufficient  to  prove  that  there  had  been 
an  accident  arising  out  of  and  in  the 


below  will  be  found  a  number  of  cases   course  of  the  employment.70 


was  affirmed  in  [1912]  A.  C.  (Eng.)  238,  81 
L.  J.  K.  B.  N.  S.  672,  [1912]  W.  C.  Rep. 
242,  12  Asp.  Mar.  L.  Cas.  47,  104  L.  T.  N.  S. 
658,  55  Sol.  Jo.  497,  27  Times  L.  R.  440, 
Ann.  Cas.  1912C,  899. 

The  death  of  the  chief  engineer  of  a 
steamer  may  be  found  to  be  due  to  an  acci- 
dent arising  out  of  and  in  the  course  of  the 
man's  employment,  where  he  was  last  seen 
behind  the  wheel  house  containing  steam 
steering  gear,  and  it  was  shown  that  the 
tips  of  the  propeller  were  bent,  and  that 
the  screw  began  to  work  faster  than  it 
should,  and  that  the  engineer  was  worried 
about  the  condition  of  the  steering  gear. 
Proctor  v.  The  Serbino  (1915)  31  Times  L. 
R.  (Eng.)  524.  The  master  of  the  rolls 
said:  "I  think,  too,  that  a  sailor  on  board 
ship  at  sea,  whose  employment  is  con- 
tinuous, stands  in  a  somewhat  special  po- 
sition, and  that  if  it  can  be  shown  or  prop- 
erly inferred  that,  when  last  seen,  he  was 
engaged  in  doing  his  duty  as  a  seaman,  the 
court  may  presume  that  the  accident  with 
which  he  met  arose  out  of  his  employment." 

Where  the  body  of  a  man  employed  on 
a  vessel  as  a  cook  and  steward,  who  was 
last  seen  alive  lying  in  his  bunk,  was  found 
on  the  following  day  in  the  sea  a  short  dis- 
tance from  the  vessel,  and  the  medical  evi- 
dence showed  that  his  death  was  due  to 
drowning,  and  he  had  never  been  seen  the 
worse  for  liquor,  but  was  subject  to  nausea, 
and  had  been  frequently  seen  vomiting  over 
the  side  of  the  vessel,  the  finding  of  the 
arbitrator  that  the  accident  arose  out  of 
and  in  the  course  of  the  man's  employment 
must  be  affirmed,  since  there  was  evidence 
to  support  it.  Kerr  (or  Lendrum)  v.  Ayr 
Steam  Shipping  Co.  (1914;  H.  L.)  30  Times 
L.  R.  664,  [1914]  W.  C.  &  Ins.  Rep.  438, 
[1914]  W.  N.  327,  58  Sol.  Jo.  737,  [1914] 
S.  C.  (H.  L.)  91,  51  Scot.  L.  R.  733,  7  B.  W. 
C.  C.  801,  reversing  [1913]  S.  C.  331,  50 
Scot.  L.  R.  173,  [1913]  W.  C.  &  Ins.  Rep. 
10,  6  B.  W.  C.  C.  326. 

An  arbitrator  is  justified  in  finding  that 
the  death  of  an  engineer  of  a  steam  tug 
was  due  to  an  accident  arising  out  of  the 
employment,  where  he  was  seen  at  5  A.  M. 
in  his  bunk,  and  one  hour  afterwards  his 
bunk  was  empty  and  his  work  clothes  were 
beside  it,  and  some  days  after  his  body  was 
found  clad  in  his  night  clothes,  and  death 
was  caused  by  drowning,  there  being  no 
suggestion  of  suicide.  Mackinnon  v.  Miller 
[1909]  S.  C.  373,  46  Scot.  L.  R.  299. 

In  Richardson  v.  The  Avonmore  (1911) 
5  B.  W.  C.  C.  (Eng.)  34,  it  was  held  that 
the  county  court  might  draw  the  inference 
that  the  death  arose  out  of  the  employment, 
although  there  was  no  direct  evidence,  where 
the  deceased  was  in  charge  of  a  ship  lying 
in  dock  moored  to  a  jetty,  and  it  would 
appear  from  where  his  body  was  found 
that  he  had  fallen  into  the  dock  from  a 
L.R.A.1VI6A. 


point  where  he  might  have  been,  in  the 
furtherance  of  his  duties,  to  attend  to  the 
shore  end  of  the  mooring  ropes. 

70  The  county  court  judge  may  find  that 
an  injury  to  a  boy  employed  in  the  defend- 
ant's boot  and  shoe  factory  arose  out  of 
his  employment,  where  the  employers 
claimed  that  the  injury  was  caused  by  the 
boy's  playing  around  a  belt,  and  the  boy 
claimed  that  he  had  not  touched  the  belt 
with  his  hand  that  afternoon,  but  that  his 
sleeve  was  caught  in  it  and  he  was  drawn 
around  the  machinery,  and  the  county  court 
judge  accepted  the  story  of  the  boy,  al- 
though he  further  found  that  the  belt 
catching  in  his  shirt  would  not  have  been 
sufficient  to  draw  him  into  the  machinery, 
but  that  in  all  probability  when  the  belt 
caught  him  in  the  shirt  he  put  out  his  hand 
and  grabbed  the  belt  to  release  himself,  and 
was  thus  drawn  into  the  machinery.  Dur- 
rant  v.  Smith  [1914]  W.  C.  &  Ins.  Rep. 
(Eng.)  282,  7  B.  W.  C.  C.  415.  The  court 
took  the  view  that  the  boy's  statement 
that  he  had  not  touched  the  belt  with  his 
hand  might  mean  no  more  than  that  he 
had  not  touched  it  while  playing  with  it. 

A  county  court  judge  was  justified  in 
finding  that  a  mason's  helper  who  was  put 
to  work  to  clean  down  the  ceiling  of  an 
archway  over  a  door  in  the  building,  which 
work  was  to  be  done  in  the  inside,  did  not 
go  outside  of  his  employment  in  going  upon 
some  scaffolding  outside  of  the  archway, 
which  had  been  left  by  some  other  work- 
man, where  there  was  some  evidence  to 
show  that  the  work  which  he  had  to  do 
could  better  be  done  from  the  outside  than 
from  the  inside.  Roberts  v.  Trollop  (1914) 
7  B.  W.  C.  C.  (Eng.)  678. 

The  county  court  judge  is  -justified  in 
inferring  that  the  injury  arose  out  of  and 
in  the  course  of  the  employment,  where 
the  evidence  showed  that  the  workman, 
who  was  a  butcher's  canvasser,  and  who 
rode  a  bicycle  in  the  course  of  his  work, 
arrived  at  his  employer's  shop  in  the  morn- 
ing, covered  with  mud  and  wheeling  the  ma- 
chine, and  was  lame,  and  complained  of 
injury  caused  by  a  slip  of  the  machine. 
Haward  v.  Rowsell  [1914]  W.  C.  &  Ins.  Rep. 
(Eng.)  314,  7  B.  W.  C.  C.  552. 

A  man  employed  as  a  stoker,  who  had 
been  ruptured  three  or  four  years  before, 
and  was  wearing  a  truss  sufficient  to  pre- 
vent strangulated  hernia  under  ordinary 
circumstances,  who  left  home  well  and  in 
excellent  spirits,  and  shortly  after  his  re- 
turn to  work  was  found  to  be  in  great 
agony,  and  died  shortly  afterwards  from 
strangulated  hernia,  may  be  found  to  be 
suffering  from  injury  by  accident  arising 
out  of  the  employment,  although  there  was 
no  evidence  as  to  how  the  hernia  came 
down  so  as  to  strangulate,  nor  of  any 
specially  heavy  work  done  by  the  deceased 


INJURY  ARISING  OUT  OF  EMPLOYMENT. 


71 


on  that  date  to  account  for  it.  Scales  v. 
West  Norfolk  Farmers'  Manure  &  Chemical 
Co.  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  165, 
«  B.  W.  C.  C.  188. 

Where  a  workman  employed  by  an  under- 
taker and  funeral  contractor  left  home  in 
tho  morning  uninjured,  and  returned  bear- 
ing injuries  which  were  consistent  with 
his  having  been  bruised  while  carrying  a 
coffin,  the  recorder  may  find  that  he  suffered 
from  accident  arising  out  of  and  in  the 
course  of  his  employment.  Wright  v.  Kerri- 
gan [1911]  2  I.  R.  (Ir.)  301.  Concerning 
the  decision  in  Mitchell  v.  Glamorgan  Coal 
Co.  (1907)  23  Times  L.  R.  (Eng.)  588, 
Cherry,  L.  J.,  said:  "Practically  all  that 
was  proved  there  was  that  the  man  went 
out  to  his  work  uninjured,  and  that  he 
came  back  with  a  crushed  finger.  But  from 
that  one  fact  the  court  of  appeal  held 
that  the  county  court  judge  was  at  liberty 
to  infer,  first,  that  the  injury  was  caused 
by  an  accident;  secondly,  that  the  accident 
arose  in  the  course  of  the  employment; 
and,  thirdly,  that  it  arose  out  of  the  em- 
ployment." 

Where  a  workman  was  set  to  do  heavy 
work  which  was  not  his  ordinary  employ- 
ment, and  in  an  hour  and  a  half  was  found 
in  a  very  serious  condition,  necessitating 
the  summoning  of  medical  aid,  and,  upon 
his  return  to  work  a  fortnight  later,  com- 
plained of  a  pain  in  his  back,  and  subse- 
quently had  to  go  to  a  hospital,  and  died 
in  about  a  month  thereafter,  the  county 
court  is  justified  in  inferring  that  the  in- 
jury was  caused  by  accident  arising  out 
of  and  in  the  course  of  his  employment. 
Hewitt  v.  Stanley  Bros.  [1913]  W.  C.  & 
Ins.  Rep.  (Eng.)  495,  109  L.  T.  N.  S.  384, 
6  B.  W.  C.  C.  501. 

The  arbitrator  may  find  that  a  miner 
was  injured  by  accident  where,  when  he 
went  to  work  at  5  o'clock  in  the  morning, 
his  knee  was  uninjured,  and  at  7  o'clock  he 
was  seen  at  work,  with  his  knee  apparently 
all  right,  and  an  hour  or  two  afterwards  he 
was  not  all  right,  but  required  help  in 
pushing  his  tub,  and  was  seen  to  rub  his 
knee  and  limp  a  little,  and  went  home  just 
before  3  o'clock,  and  there  was  a  slight 
bruise  on  his  knee,  and  thereafter  his  knee 
became  swollen,  and  he  died  about  a  week 
after  from  the  injury  to  his  knee,  although 
there  was  no  direct  proof  that  he  received 
the  injury  by  contact  with  the  tub  which 
it  was  his  duty  to  push.  Hayward  v.  West- 
leigh  Colliery  Co.  [1915]  A.  C.  (Eng.)  540, 
31  Times  L.  R.  215,  [1915]  W.  N.  67,  59  Sol. 
Jo.  269,  84  L.  J.  K.  B.  N.  S.  661.  8  B.  W. 
C.  C.  278,  reversing  court  of  appeal,  [1914] 
W.  C.  &  Ins.  Rep.  (Eng.)  21,  7  B.  W.  C.  C. 
53. 

Where  the  deceased,  a  station  policeman, 
might  legitimately  have  been  at  the  spot 
where  he  was  injured  in  the  course  of  his 
duties,  the  presumption  is  that  he  had  been 
injured  by  accident  arising  out  of  and  in 
course  of  his  employment,  and  in  the  ab- 
sence of  evidence  to  the  contrary  this  must 
be  taken  to  be  the  fact.  Grant  v.  Glasgow 
&  S.  W.  R.  Co.  [1908]  S.  C.  (Scot.)  187. 
L.R.A.1916A. 


The  inference  may  be  drawn  that  the 
injury  arose  out  of  and  in  the  course  of 
the  employment,  where  a  night  workman 
in  a  colliery  went  to  his  home  one  morning 
at  the  regular  time,  with  a  broken  finger, 
and  there  was  nothing  to  suggest  that  the 
accident  happened  on  his  way  home. 
Mitchell  v.  Glamorgan  Coal  Co.  (1907)  23 
1  Times  L.  R.  (Eng.)  588. 

An  accident  arising  out  of  and  in  the 
course  of  the  employment  may  be  inferred 
where  a  bricklayer  returned  home  from 
work  one  night,  with  a  sore  on  the  back 
of  the  thumb  of  his  hand,  and  there  is 
evidence  that  such  was  a  common  occur- 
rence with  a  bricklayer.  Fleet  v.  Johnson 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  149,  29 
Times  L.  R.  207,  57  Sol.  Jo.  226,  6  B.  W. 
C.  C.  60. 

In  Lovelady  v.  Berrie  (1909)  2  B.  W. 
C.  C.  (Eng.)  62,  a  good,  healthy  and  steady 
workman  was  employed  to  pick  up  cotton 
waste  about  the  decks  of  a  ship,  and  dur- 
ing the  employment  was  sent  to  work  in 
a  hold.  After  two  hours  he  came  up  the 
ladder  of  the  hold,  apparently  in  great  pain, 
and  the  foreman  sent  him  home.  Upon 
examination  there  appeared  slight  marks 
upon  his  ribs.  After  three  days  pneumonia 
developed,  attributable  by  the  attending 
doctor  to  the  injury  to  his  sides,  which  cul- 
minated about  a  week  thereafter  in  his 
death.  The  court  of  appeal  held  that  the 
death  was  caused  by  accident  arising  out 
of  and  in  the  course  of  his  employment, 
although  how  he  received  the  injury  was 
unknown,  or  at  least  is  not  revealed  in  the 
report  of  the  case. 

Where  a  puddler  in  an  iron  works  left 
the  door  of  his  furnace  to  go  to  the  black- 
smith shop,  which  was  five  minutes'  walk 
distant,  the  route  being  well  lighted  and  ly- 
ing along  the  bank  of  a  canal,  and  he  was 
found  drowned  the  next  day  in  the  canal, 
the  county  court  judge  may  find  that  he 
came  to  his  death  by  accident  arising  out 
of  and  in  the  course  of  his  employment,  al- 
though there  is  no  direct  evidence  as  to  how 
he  came  to  be  in  the  canal.  Furnivall  v. 
Johnson's  Iron  &  Steel  Co.  (1911)  5  B.  W. 
C.  C.  (Eng.)  43. 

Where  a  gardener  was  injured  while  at 
work  in  the  garden  by  a  nail  passing 
through  his  boot  and  piercing  the  large 
toe,  and  died  from  tetanus,  which  subse- 
quently set  in,  it  was  held  that  he  died 
from  accident  arising  out  of  and  in  the 
course  of  his  employment,  where  it  was 
shown  that  persons  working  in  stables  and 
gardens  are  peculiarly  subject  to  contract 
the  disease  of  tenanus  if  suffering  from  any 
wound  or  cut,  but  it  was  not  shown  that  he 
might  not  have  contracted  the  disease  else- 
where. Walker  v.  Mullins  (1908)  42  Ir. 
Law  Times,  168,  1  B.  W.  C.  C.  211. 

A  county  court  judge  may  find  that  death 
resulted  from  injury  by  accident  arising  out 
of  and  in  the  course  of  the  employment, 
although  the  only  admissible  evidence  of  the 
fact  of  the  accident  consisted  of  a  notice  of 
accident  the  workman  sent  to  the  employer, 
'  and  the  payment,  two  days  before  his  death, 


72 


WORKMEN'S  COMPENSATION. 


rt.  Disabled  "from  earning  full  wages" 
(§    1,   subsec.  2    (a)) . 

A  workman  whose  work  consisted 
partly  of  superintendence  and  partly  of 
the  adjustment  of  certain  machines  was 
held  to  have  been  disabled  "for  a  period 
of  at  least  two  weeks"  from  "earning 
full  wages  at  the  work  at  which  he  was 
employed,"  within  the  meaning  of  this 
subsection,  where,  although  it  was  shown 
that  after  the  accident  he  continued  to 
work  for  the  same  employer  at  the  same 
wages,  it  was  also  proved  that  he  was 
unable  to  attend  to  the  adjustment  of 
machines;  that  he  could  do  no  work  ex- 
cept that  of  superintendence;  and  that 
he  would  have  been  unable  to  earn  the 
same  wages  if  he  had  had  to  take  service 
under  another  employer;  and  it  is  im- 
material that  as  a  matter  of  grace,  the 
employer  paid  full  wages  all  of  the  time, 
so  that  in  fact  the  workman  lost  no  part 
of  his  wages.71 

e.  Alternative  remedies  open  to  worlc- 
man  or  dependents  (§  1,  subsec. 
2  (b)). 

As  to  election  to  come  under  the 
American  statutes,  see  post,  219. 

As   to   exclusiveness   of   remedy   fur- 


nished by  the  American  statutes,  see 
post,  223. 

The  provision  of  the  act  which  gives 
the  workman  or  his  dependents  the  op- 
tion of  taking  proceedings  independent- 
ly of  the  act  in  case  the  injury  is  caused 
by  the  personal  negligence  or  wilful  act 
of  the  employer,  or  of  some  person  for 
whose  act  or  default  the  employer  is  re- 
sponsible, has  been  held  not  to  prevent 
the  workman  from  maintaining  a  com- 
mon-law action,  after  it  had  been  de- 
termined that  his  case  was  not  one  which 
came  within  the  purview  of  the  act ; 72 
as  where  the  workman  had  not  been  in 
the  employment  for  a  period  of  time  suf- 
ficiently long  to  entitle  him  to  compensa- 
tion,73 or  where  the  claimant  was  not  a 
"dependent"  within  the  meaning  of  the 
act,74  or  where  the  claimant  was  only 
partially  dependent  upon  the  workman 
and  there  were  others  who  were  wholly 
dependent  upon  him.75  And  it  has  been 
held  not  to  prevent  a  workman  from 
withdrawing  a  claim  made  under  the  act, 
before  there  has  been  any  decision  upon 
it.76  Where  however,  compensation  has 
been  refused  upon  the  merits  of  the  case, 
the  workman  is  then  not  entitled  to  bring 
an  action  independently  of  the  statute.77 

But  the  broad  view  was  later  taken  by 


of  a  sum  as  compensation  money  to  his 
wife,  who  called  for  it.  Harley  v.  Walsall 
Wood  Colliery  Co.  [1915]  W.  C.  &  Ins.  Rep. 
(Eng.)  9,  8  B.  W.  C.  C.  86. 

71  Chandler    v.    Smith     [1899]     2    Q.    B. 
(Eng.)    506,  68   L.  J.  Q.  B.   N.   S.   909,   81 
L.   T.   N.   S.   317,   47    Week.   Rep.   677,   15 
Times   L.  R.   480,   followed   in   Freeland   v. 
Macfarlane     (1900)     2    Sc.    Sess.    Gas.    5th 
series,  832,  37  Scot.  L.  R.  599,  7  Scot.  L.  T. 
456;    Great   North    of    Scotland   R.    Co.    v. 
Fraser    (1900)    3   Sc.   Sess.  Cas.  5th   series, 
908,  38  Scot.  L.  R.  653,  9  Scot.  L.  T.  96. 

72  An  injured  employee  who  has  accepted 
a  certain   sum   of   money  as   compensation 
under  the  act  is  not  debarred  thereby  from 
recovering  at  common  law,  where  he  has  no 
cause  of  action  under  the  act.     Harris   v. 
Ford  (1909)  28  New  Zealand  L.  R.  426. 

73Beckley  v.  Scott  [1902]  2  L.  R.  (Ir.) 
504  (workman  held  not  to  be  precluded 
from  maintaining  action  at  common  law 
after  it  had  been  determined  that  his  case 
was  not  one  within  the  act  because  he  had 
not  been  employed  two  weeks). 

74  A  claimant  who  has  been  refused  com- 
pensation on  the  ground  that  she  was  not 
a  "dependent"  of  the  deceased  workman  is 
not  thereby  barred  from  raising  an  action 
of  reparation  at  common  law,  or  under  the 
employers'   liability   act   1880,   against   the 
deceased's   employer.     M'Donald  v.   Dunlop 
(1905)    7   Sc.   Sess.   Cas.  5th  series    (Scot.) 
533. 

75  A  son  who  had  claimed  compensation 
under  the  act  on  account  of  the  death  of 
L.R.A.1916A. 


his  father,  but  was  found  to  have  no  title 
to  insist  on  the  claim,  because  he  had  been 
only  partially  dependent  on  his  father, 
while  there  were  others  who  had  been 
wholly  dependent  on  the  father,  is  not,  by 
reason  of  his  unsuccessful  claim,  barred 
from  insisting  on  an  action  for  damages  on 
account  of  the  death  of  his  father.  Blain 
v.  Greenock  Foundry  Co.  (1903)  5  Sc.  Sess. 
Cas.  5th  series,  893,  40  Scot.  L.  R.  639,  11 
Scot.  L.  T.  92. 

76  Rouse  v.  Dixon   [1904]  2  K.  B.   (Eng.) 
628,  73  L.  J.  K.  B.  N.  S.  662,  68  J.  P.  407, 
91  L.  T.  N.  S.  436,  20  Times  L.  R.  553,  53 
Week.  Rep.  237.     In  this  case  the  building 
upon  which  the  workman  was  at  work  was 
not   of   sufficient  height  to   entitle   him   to 
compensation. 

77  A    workman    who    has    claimed    com- 
pensation under  the  act,  and  whose  claim 
has   been   disallowed   by   the   arbitrator  on 
the  ground  of  his  serious  and  wilful  mis- 
conduct, must  be  held  to  have  exercised  the 
option  given  to  him,  and  he  is  not  entitled 
thereafter  to  bring  an  action  for  damages 
at  common  law.    Burton  v.  Chapel  Coal  Co. 
[1909]  S.  C.  (Scot.)  430.   Lord  McLaren  said: 
"Upon  an  equitable  view  of  the  meaning  of 
the  proviso,   it   has  been   held   that   if   the 
claimant  has  not  a  title  to  claim  compensa- 
tion, because  he  is  not  within  the  class  of 
persons   who   are   described   as   dependents, 
his  failure  to  show  a  title  does  not  preclude 
him  from  setting  up  his  claim  at  common 
law.    In  such  a  case  there  is  no  real  option, 
because  the  party  has  only  one  claim.     The 


ALTERNATIVE  REMEDIES. 


73 


the  court  of  appeal,  that  if  a  workman 
takes  proceedings  under  the  workmen's 
compensation  act  or  commences  an  ac- 
tion either  at  common  law  or  under  the 
employers'  liability  act,  he  has  exercised 
his  option  regardless  of  the  outcome  of 
such  proceedings,  the  only  exception  be- 
ing that  provided  for  in  §  1,  subsec.  4.78 
An  election  under  the  act  is  shown  by 
proof  that  the  workman  accepted  pay- 


ments for  a  considerable  period  of 
time.79  But  an  alleged  election  may  be 
disproved  by  showing  that,  although  the 
workman  had  accepted  payment,  he  was 
excusably  ignorant  of  the  effect  of  his 
act,  particularly  if  there  were  anything 
like  misrepresentation  made  by  the  em- 
ployer in  order  to  secure  the  acceptance 
by  the  workman  of  the  payment.80 
An  interesting  question  has  arisen  in 


case  is  therefore  not  within  the  proviso  we 
are  considering,  which  presupposes  two 
claims,  one  of  which  is  to  be  heard  and 
determined.  But  in  the  present  case  the 
claim  under  the  compensation  act  was  tried 
and  decided  against  the  claimant  on  its 
merits,  and  he  is  now  attempting  to  follow 
out,  by  action  at  law,  the  alternative  claim, 
which  is  founded  on  the  alleged  fault  of  the 
employer.  This  proceeding,  as  I  think,  is 
contrary  to  the  letter,  and  the  spirit  of  the 
statutory  provision  against  double  lia- 
bility." 

TSCribb  v.  Kynoch  [1908]  2  K.  B.  (Eng.) 
551,  77  L.  J.  K.  B.  N.  S.  1001,  99  L.  T.  N.  S. 
216,  24  Times  L.  R.  736,  52  Sol.  Jo.  581. 
Beckley  v.  Scott  (Ir.)  and  Rouse  v.  Dixon 
(Eng.)  supra,  were  disapproved.  It  is  to  be 
noted,  however,  that  the  actual  decision  in 
this  case  was  that  a  workman  could  not 
give  the  required  notice  in  due  time,  and 
have  it  serve  as  a  foundation  for  future 
proceedings  in  the  event  that  an  action  at 
law  commenced  more  than  six  months  after 
the  injury  should  prove  unsuccessful. 

79  Where  it  appeared  that  at  the  end  of 
the  week  in  which  he  was  injured  a  work- 
man was  paid  a  sum  in  lieu  of  wages,  and 
was  told  that  for  the  next  two  weeks  he 
would  get  nothing,  but  after  that  he  would 
be  paid  half  wages,  and  subsequently,  for  a 
period  of  about  six  months,  received  each 
week  a  sum  amounting  to  slightly  more 
than  half  his  average  weekly  wage,  it  was 
held  that,  notwithstanding  there  was  no 
written  agreement  and  no  receipt  was  given, 
the  pursuer  had  elected  to  accept,  and  had 
accepted,  compensation  under  the  workmen's 
compensation  act,  and  was  therefore  barred 
from  bringing  an  action  at  common  law. 
Mackey  v.  Rosie  [1908]  S.  C.  174,  45  Scot. 
L.  R.  178,  1  B.  W.  C.  C.  52.  The  lord  ordi- 
nary pointed  out  that  the  workman  was 
not  a  foreigner  nor  an  illiterate  person  and 
was  not  in  such  a  condition  as  the  result 
of  the  accident  that  he  could  claim  not  to 
be  responsible  for  his  acts. 

An  election  to  take  under  the  act  is  evi- 
denced by  receipts  for  weekly  payments, 
some  of  which  were  worded,  "in  full  satis- 
faction of  amount  due  to  me  under  the  act." 
Little  v.  MacLellen  (1900)  2  Sc.  Sess.  Cas. 
5th  series,  387,  37  Scot.  L.  R.  287,  7  Scot  L. 
T.  313. 

Weekly  payments  of  half  wages  continued 
for  over  six  months  will  be  held  satisfac- 
tion of  any  claim  for  compensation  al- 
though the  receipts  which  the  workman 
gave  were  headed  with  the  words  "com- 
passionate allowances."  Ferriter  v.  Port  of 
L.R.A.1936A. 


London  Authority  [1913]  W.  C.  &  Ins. 
Rep.  (Eng.)  455,  6  B.  W.  C.  C.  732. 

80  In  Fowler  v.  Hughes  (1903)  5  Sc.  Sess. 
Cas.  5th  series,  394,  40  Scot.  L.  R.  321,  10 
Scot.  L.  T.  583,  the  court  held  that  a  receipt 
for  12  s.  6  d.  for  injuries  due  to  the  loss  of 
an  eye,  secured  by  an  agent  of  the  employer 
while  the  injured  employee  was  lying  in 
bed  in  great  suffering,  and  without  giving 
him  any  explanation,  and  without  reading  it 
over  to  him,  could  not  be  considered  as  an 
agreement  by  him  to  take  his  compensation 
under  the  act. 

The  signing  of  a  receipt  which  purports 
to  be  a  "final  discharge"  does  not  bar  the 
workman's  claim  to  compensation  as  long 
as  he  is  incapacitated,  where  the  workman 
was  ignorant  of  what  the  paper  contained, 
and  it  was  without  consideration.  Mac- 
andrew  v.  Gilhooley  [1911]  S.  C.  448,  48 
Scot.  L.  R.  511,  4  B.  W.  C.  C.  370. 

A  workman  cannot  be  said  to  have 
elected  to  take  compensation  under  the  act 
because  he  had  applied  for  money  for  his 
injuries,  and  accepted  two  sums  consisting 
of  the  amount  due  him  under  the  act,  and 
had  with  his  mark  authenticated  two  re- 
ceipts therefor,  and  knew  of  his  right  to 
half  wages  during  incapacity,  where  it  ap- 
pears that  he  was  imperfectly  acquainted 
with  the  English  language,  and  unable  to 
read  or  write  it,  and  did  not  know  of  the 
act  by  name,  or  of  his  rights  apart  from 
the  act,  and  the  receipts  were  not  read  over 
or  explained  to  him.  Valenti  v.  Dixon 
[1906-07]  S.  C.  (Scot.)  695. 

While  a  release  or  an  agreement  to  ac- 
cept a  lump  sum  in  full  satisfaction  of  all 
claims  is  not  prohibited  by  the  act,  a  re- 
ceipt for  the  amount  to  which  an  injured 
workman  is  entitled  under  the  act,  although 
expressed  to  be  in  full  satisfaction  and 
liquidation  of  any  claim  he  had  or  might 
have  in  respect  to  the  accident,  does  not 
amount  to  a  release,  being  without  consider- 
ation. Great  Fingall  v.  Sheehan  (1906)  3 
Austr.  L.  R.  176. 

It  is  for  the  jury  to  say  whether  an 
injured  workman  understood  the  nature  of 
several  receipts  which  he  signed,  acknowl- 
edging the  receipt  of  compensation  under 
the  act,  where  he  subsequently  returned 
the  money,  and  claimed  that  he  did  not 
understand  the  nature  of  the  receipts. 
Huckle  v.  London  County  Council  (1910)  27 
Times  L.  R.  (Eng.)  112,  4  B.  W.  C.  C.  113. 

A  workman  cannot  be  held  to  have  taken 
proceedings  independently  of  the  act,  where 
he  signed  a  receipt  in  full  of  claims  "under 
the  employers'  liability  act  of  1880"  where 


74 


WORKMEN'S  COMPENSATION. 


a  few  cases  as  to  whether  some  of  the 
dependents  in  a  case  in  which  the  work- 
man has  been  killed  under  circumstances 
which  render  the  employer  liable  at 
common  law,  or  under  the  employers' 
liability  act,  may,  by  taking  proceedings 
to  secure  compensation,  prevent  other 
dependents  from  bringing  in  an  action 
to  recover  damages,  but  in  these  cases 
the  facts  are  such  that  the  court  has 
not  had  to  pass  upon  the  question.81 
Thus,  a  widow,  who,  although  not  a 
party  to  the  proceedings  for  compensa- 
tion, attends  the  hearing  and  renounces 
her  right  and  interests  in  the  award  to 
be  made,  cannot  subsequently  bring  an 
action  for  damages.82  The  decision  of 
the  court  of  appeal  was  put  upon  the 
ground  that  the  award  had  been  made 
with  the  widow's  knowledge  and  con- 
sent.83 In  another  case  the  widow  re- 


nounced her  interest  in  the  arbitration, 
intending  to  bring  suit  under  Lord  Camp- 
bell's act;  and  upon  the  award  being 
made,  it  was  simply  held  that  the  de- 
pendents, who  claimed  the  award,  were 
entitled  to  all  of  it,  and  that  the  por- 
tion which  would  have  gone  to  the  widow 
had  she  joined  in  the  award  did  not  go 
back  to  the  employers.84 

An  option  exercised  in  behalf  of 
minors  to  accept  benefits  under  the  act 
is  not  a  bar  to  a  subsequent  action  for 
damages,  if  the  option  is  not  for  the 
benefit  of  the  minor.85  But  where  litiga- 
tion duly  commenced  in  the  name  of  the 
infant  by  a  next  friend  has  been  prose- 
cuted to  judgment,  he  is  as  much  bound 
by  the  proceedings  as  if  he  were  an  adult, 
and  will  be  held  to  have  exercised  his 
option.86 

The    personal    representatives    of    a 


he  claimed  compensation  under  the  act  of 
1906,  and  no  previous  mention  of  employ- 
ers' liability  act  had  been  made,  and  as  a 
matter  of  fact  the  employer  had  not  paid 
the  workman  the  full  amount  mentioned 
in  the  receipt.  Hawkes  v.  Coles  (1910)  3 

B.  W.  C.  C.   (Eng.)   163. 

81  In  Codling  v.  Mowlem   (1914)   7  B.  W. 

C.  C.  (Eng.)  786,  Buckley,  L.  J.,  in  discuss- 
ing the  provision  of  §  1   (2)    (b),  as  to  the 
privilege  given  to  dependent,  to  proceedings 
either   under   the   act   or   independently    of 
the  act,  said:      "I   quite  recognize,   as   has 
been  suggested  in  the  course  of  the  argu- 
ment in  this  case,  that  many  very  difficult 
questions  may   arise  under  that   provision. 
For   instance,   if  you  have,   as   here,   seven 
dependents,  what  is  meant  by  'may  at  their 
option  ?'     Does  that  mean  that  they  must 
be  unanimous  in  their  option,  or  if  four  of 
them   take   one   view,   and   three   take   the 
other,  is  the  voice  of  the  majority  to  pre- 
vail, or  has  each  one  of  the  dependents  indi- 
vidually an  option  ?     Inasmuch  as  the  op- 
tion  is  to  do  either  one  thing  or  another 
thing,  you  cannot,  of  course,  have  an  option 
exercised  in  one  way  which  does  not  exclude 
the  other;   and  if  three  of  them  take  the 
former   course,   and    four    take    the    latter, 
there  is  no  option  really  of  the  dependents 
as   a    body   at  all.     Those    are    difficulties 
which    will    have    to    be    faced    when    they 
arise." 

82  Codling   v.   Mowlem    (Div.   Ct.)    [1914] 
2  K.  B.  (Eng.)  61,  83  L.  J.  K.  B.  N.  S.  445, 
108  L.  T.  N.  S.  1033,  29  Times  L.  R.  619, 
[1914]   W.  C.  &  Ins.  Rep.  1,  6  B.  W.  C.  C. 
766,    affirmed    by    the    court    of    appeal    in 
[1914]  3  K.  B.  (Eng.)  1055,  111  L.  T.  N.  S. 
1086,  83  L.  J.  K.  B.  N.  S.  1727,  30  Times 
L.  R.  677,  58  Sol.  Jo.  783,  [1914]  W.  N.  333, 
7  B.  W.  C.  C.  786. 

83  In  the  divisional  court  Atkin,  J.,  had 
said:     "The  employer  has  been  made  liable 
to  pay,  and  has  in  fact  paid,  compensation 
for   injury   to   a   workman   by   an   accident 
arising  out  of  and  in  the  course  of  his  em- 
U.K.A.1916A. 


ployment  under  the  workmen's  compensa- 
I  tion  act  by  an  award  duly  made.  It  seems 
to  me  immaterial  whether  such  liability  was 
!  imposed  and  payment  made  with  the  knowl- 
edge and  consent  of  the  plaintiff  or  not,  but 
in  this  case  the  plaintiff  both  knew  and  con- 
sented. I  think  that  the  employers  are, 
|  by  the  terms  of  the  act,  not  liable  also  to 
pay  compensation  for  such  injury  inde- 
pendently of  the  act,  and  the  plaintiff  in 
this  action  seeks  to  impose  such  a  liability. 
I  therefore  decide  the  point  of  law  men- 
tioned in  the  order  in  favour  of  the  defend- 
ants, the  employers,  who  must  have  the 
costs  of  the  hearing  before  me  in  any 
event."  The  court  of  appeal,  however,  dif- 
fered from  Atkin,  J.,  in  his  statement  that 
it  was  immaterial  whether  such  payment 
had  been  made  with  the  knowledge  or  con- 
sent of  the  plaintiff* or  not;  it  was  stated 
by  that  court  that  if  the  payment  had  been 
made  without  her  knowledge  and  without 
her  consent,  a  very  different  question  would 
have  arisen,  but  that  it  appeared  that  the 
plaintiff  both  knew  and  consented  to  the 
payment. 

84  Gill  v.  Fortescue   [1913]  W.  C.  &  Ins. 
!  Rep.  (Eng.)  471,  6  B.  W.  C.  C.  577. 

85  Stephens   v.   Dudbridge   Ironworks   Co. 
[1904]   2  K.  B.   (Eng.)   225,  73  L.  J.  K.  B. 
N.  S.  739,  68  J.  P.  437,  52  Week.  Rep.  644, 
90  L.  T.  N.  S.  838,  20  Times  L.  R.  492,  6 

|  W.  C.  C.  48. 

The  acceptance  in  behalf  of  a  minor  four- 
teen years  of  age  of  compensation  at  one 
half  the  amount  of  her  wages  will  not  pre- 
]  elude  her   from   maintaining  an  action   for 
j  damages   against   the   employer   if   the   ar- 
rangement does  not  appear  to  be   for  her 
benefit.     Ford  v.  Wren   (1903;  common-law 
action)  115  L.  T.  Jo.  (Eng.)  357,  5  W.  C.  C. 
48. 

86  Cribb  v.  Kynoch  [1908]  2  K.  B.  (Eng.) 
551,  77  L.  J.  K.  B.  N.  S.  1001,  99  L.  T.  N.  S. 
216.  24  Times  L.  R.  736,  52  Sol.  Jo.  581,  1 
B.  W.  C.  C.   43. 


SERIOUS  AND  WILFUL  MISCONDUCT. 


75 


workman  who  had  accepted  a  scheme 
certified  by  the  registrar  of  a  friendly 
society  under  $  3,  subsec.  1  of  the  act, 
cannot  take  advantage  of  the  rights 
which  they  otherwise  would  have  had 
under  the  common  law  or  the  employers' 
liability  act.  The  workman  had  exer- 
cised the  option  provided  for  in  §  1, 
subsec.  2  (b).87 

A  workman  who,  upon  the  suspension 
of  payments  made  under  the  act,  com- 
mences a  common-law  action  for  his  in- 
juries, will  be  held  to  have  acquiesced  in 
the  suspension  of  payments  under  the 
act  during  the  continuance  of  the  action, 
and  is  barred  from  thereafter  claiming 
compensation  for  such  time.88 

A  workman  receiving  full  compensa- 
tion in  respect  to  an  injury  causing  in- 
capacity is  estopped  from  claiming  wages 
•during  the  period  for  which  he  received 
compensation.89 

See  also  the  cases  construing  subsec.  4 
of  §  1,  relative  to  the  recovery  of  com- 
pensation in  cases  where  nonliability 
apart  from  the  statute  has  been  estab- 
lished. Post,  81. 


/.   "Serious  and  wilful  misconduct"  of 
workman   (§  1,  subsec.  2   (c) ) . 

As  to  the  effect  of  serious  and  wilful 
misconduct  of  employee,  under  the 
American  statutes,  see  post,  243. 

The  phrase  "serious  and  wilful  mis- 
conduct" implies,  apparently,  something 
nearly,  if  not  quite,  the  same  as  that 
"wilful  misconduct"  which  was  explained 
by  the  court  of  appeals  in  a  case  involv- 
ing the  liability  of  a  carrier  for  damage 
to  goods.  "There  must  be  the  doing  of 
something  which  the  person  doing  it 
knows  will  cause  risk  or  injury,  or  the 
doing  of  an  unusual  thing  with  reference 
to  the  matter  in  hand,  either  in  spite  of 
warning,  or  without  care,  regardless 
whether  it  will  or  will  not  cause  in- 
jury."90 It  has  been  said  that  miscon- 
duct is  not  "serious  and  wilful"  unless 
moral  blame  attaches  to  it,91  and  that 
the  word  "serious"  imports  deliberate- 
ness,  not  merely  thoughtlessness.92  The 
act  itself  must  be  serious  and  not  mere- 
ly the  consequences  thereof.93 

The  question  whether  the  servant  is  or 
is  not  debarred  from  recovery  on  the 
ground  of  "serious  and  wilful  miscon- 


87  Taylor  v.  Hamstead  Colliery  Co.  [1904] 
1  K.  B.  (Eng.)  838,  73  L.  J.  K.  B.  N.  S.  469, 
68  J.  P.  300,  52  Week.  Rep.  417,  90  L.  T. 
N.  S.  363,  20  Times  L.  R.  338. 

88Rosie  v.  MacKay  [1909-10]  S.  C.  714, 
46  Scot.  L.  R.  999. 

89  Elliott  v.  Liggens  [1902]  2  K.  B.  (Eng.) 
84,   71   L.   J.   K.   B.   N.   S.   483,   50  Week. 
Rep.    524,    87    L.    T.    N.    S.    29,    18    Times 
L.  R.  514. 

90  Cotton,  L.  J.,  in  Lewis  v.  Great  Western 
R.   Co.    (1877)    L.  R.  3   Q.   B.  Div.    (Eng.) 
195,   47    L.   J.   Q.   B.   N.    S.   131,   37    L.   T. 
N.  S.  774,  26  Week.  Rep.  255.     The  lan- 
guage used  by   the   other   lords  justices   is 
to  a  similar  effect. 

91  Lord   M'Laren   in   Praties   v.   Broxburn 
Oil  Co.  [1906-07]  S.  C.  (Scot.)  581. 

92  Johnson  v.  Marshall  [1906]  A.  C.  (Eng.) 
409,   75   L.   J.   K.   B.   N.   S.   868,   94   L.   T. 
N.  S.  828,  22  Times  L.  R.  565,  5  Ann.  Cas. 
«30,  8  W.  C.  C.  10. 

In  Wallace  v.  Glenboig  Fire  Clay  Co. 
[1907]  S.  C.  (Scot.)  967,  as  cited  in  2  Mew's 
Dig.  Supp.  1547,  it  was  held  that  the  act 
must  be  wilful  and  also  serious — that  is, 
not  doubtful  or  trivial  in  quality. 

93  Johnson  v.  Marshall    (Eng.)   supra. 
Serious     misconduct     means     misconduct 

which  in  itself  is  serious,  and  not  serious 
only  when  looked  at  in  the  light  of  the 
actual  consequences  of  it.  Hill  v.  Granby 
Consol.  Mines  (1905)  12  B.  C.  118. 

Compensation  will  not  be  refused  on  the 
ground  of  serious  and  wilful  misconduct 
on  the  part  of  a  workman  who  was  injured 
while  walking  along  a  tramway  in  a  mine 
upon  which  he  knew  trams  were  approach- 
ing, where  the  injury  was  caused  by  the 


rope  slipping,  and  there  was  no  evidence 
that  he  could  not  have  reached  a  manhole 
before  the  tram  reached  him.  Rees  v. 
Powell  Duffryn  Steam  Coal  Co.  (1900)  64  J. 
P.  (Eng.)  164. 

Nor  where  an  engineer,  after  leaving  his 
engine,  walked  along  the  track  to  a  station 
where  he  had  to  report  himself  off  duty. 
Todd  v.  Caledonian  R.  Co.  (1899)  1  Sc. 
Sess.  Cas.  5th  series,  1047,  36  Scot.  L.  R. 
784,  7  Scot.  L.  T.  85. 

Nor  where  a  watchman,  stationed  at  a 
certain  point  to  warn  approaching  trains 
of  a  landslide,  went  along  the  line  for  about 
300  yards.  Glasgow  &  S.  W.  R.  Co.  v. 
Laidlaw  (1900)  2  Sc.  Sess.  Cas.  5th  series, 
708,  37  Scot.  L.  R.  503,  7  Scot.  L.  T.  420. 

But  a  miner's  injury  must  be  held  attrib- 
utable to  his  own  serious  and  wilful  mis- 
conduct, where  the  injury  was  received 
while  he  was  attempting  to  cross  two  sets 
of  rails  in  a  mine  while  the  hutches  were 
running,  with  full  knowledge  that  it  was 
dangerous  so  to  do,  and  the  danger  could 
have  been  avoided  by  waiting  a  short  time 
until  the  hutches  had  ceased  running.  Con- 
dron  v.  Paul  (1903)  6  Sc.  Sess.  Cas.  5th 
series,  29,  41  Scot.  L.  R.  33,  11  Scot.  L. 
T.  383. 

The  act  of  a  farm  servant  who,  in  driv- 
ing a  lorry,  ties  the  reins  to  a  small  wheel 
which  worked  a  brake  on  the  front  of  the 
lorry,  instead  of  keeping  them  in  his  hand, 
thereby  causing  the  horse's  head  to  be 
pulled  round  so  as  to  make  it  run  back 
and  upset  the  lorry,  amounts  to  "serious 
and  wilful  misconduct."  Vaughan  v.  Nicoll 
(1906)  8  Sc.  Sess.  Cas.  5th  series  (Scot.) 
464. 


76 


WORKMEN'S  COMPENSATION. 


duct"  ceases  to  be  of  any  importance, 
when  it  is  apparent  from  the  circumstan- 
ces that  the  accident  did  not  arise  out 
of,  or  in  the  course  of,  his  employment.94 
But  if  the  workman  brings  himself  with- 
in the  act  by  showing  that  the  accident 
arose  out  of,  and  in  the  course  of,  his 
employment,  his  case  can  only  be  met  by 
the  employer  by  showing  that  the  injury 
to  the  workman  is  attributable  to  his 
serious  and  wilful  misconduct.95 

It  has  been  held  that  a  finding  in  favor 
of  the  workman  will  not  be  held  errone- 
ous as  a  matter  of  law  because  of  his 
violation  of  rules  and  orders  laid  down 


by  the  master,96  especially  if  the  rule 
was  unknown  to  the  workman,97  or  if  it 
appears  that  the  rule  was  habitually  vio- 
lated.98 Ignorance  of  a  rule  for  the 
guidance  of  miners  may  not  amount  to 
serious  and  wilful  misconduct,  although 
the  miners  had  means  of  knowledge  of 
the  rule.99  But  a  decision  apparently 
the  contrary  has  been  handed  down  by 
the  Scottish  court  of  sessions,  in  regard 
to  a  statutory  rule.1  Ordinarily,  how- 
ever, the  breach  of  an  express  rule  or 
order  will  be  held  to  be  serious  or  wilful 
misconduct  as  a  matter  of  fact,  especially 
if  such  rule  or  order  was  made  especially 


94  Lowe  v.  Pearson  [1899]  1  Q.  B.  (Eng.) 
261,  68  L.  J.  Q.  B.  N.  S.  122,  47  Week. 
Rep.  193,  79  L.  T.  N.  S.  654,  15  Times 
L.  R.  124. 

See  also  cases  cited  in  notes  10  et  seq. 
ante,  in  which  there  was  a  disobedience 
of  orders  which  might  be  considered  serious 
and  wilful  misconduct,  but  the  decisions 
are  based  upon  the  ground  that  the  injury 
did  not  arise  out  of  the  employment. 

95McNicholas  v.  Dawson  [1899]  1  Q.  B. 
(Eng.)  773,  68  L.  J.  Q.  B.  N.  S.  470,  80 
L.  T.  N.  S.  317,  47  Week.  Rep.  500,  15 
Times  L.  R.  242,  per  Collins,  L.  J.;  John- 
son v.  Marshall  [1906]  A.  C.  (Eng.)  409, 
75  L.  J.  K.  B.  N.  S.  868,  94  L.  T.  N.  S. 
828,  22  Times  L.  R.  565,  5  Ann.  Cas.  630, 
8  W.  C.  C.  10,  per  Lord  Loreburn,  L.  C. 

96  In  George  v.  Glasgow  Coal  Co.  [1909] 
A.  C.  (Eng.)  123,  2  B.  W.  C.  C.  125,  Lord 
Loreburn,  L.  C.,  said:  "In  my  opinion, 
it  is  not  the  province  of  a  court  to  lay 
down  that  the  breach  of  a  rule  is  prima 
facie  evidence  of  serious  and  wilful  mis- 
conduct. That  is  a  question  purely  of  fact, 
to  be  determined  by  the  arbitrator  as  such. 
The  arbitrator  must  decide  for  himself 
and  ought  not  to  be  fettered  by  artificial 
presumptions  of  fact  prescribed  by  a  court 
of  law." 

A  finding  in  favor  of  a  servant  will  not 
be  pronounced  erroneous,  as  a  matter  of 
law,  where  a  rule  made  under  the  coal 
mines  regulation  act  of  1887  was  violated 
by  a  workman  employed  in  a  coal  mine. 
Rumboll  v.  Nunnery  Colliery  Co.  (1899) 
80  L.  T.  N.  S.  (Eng.)  42,  63  J.  P.  132. 

Nor  where  a  workman  instead  of  using 
a  ladder  undertook  to  ascend  by  a  hoist 
to  a  platform  for  the  purpose  of  obtaining 
a  certain  article  which  he  required  for  his 
work.  Logue  v.  Fullerton  (1901)  3  Sc. 
Sess.  Cas.  5th  series,  1006,  38  Scot.  L.  R. 
738,  9  Scot.  L.  T.  152. 

Nor  where  a  boy  of  nineteen,  in  contra- 
vention of  an  express  order,  put  his  hand 
across  a  circular  saw  to  pick  up  an  uncut 
screw  which  had  fallen  from  its  place. 
Reeks  v.  Kynoch  (1901)  18  Times  L.  R. 
(Eng.)  34,  50  Week.  Rep.  113,  2  N.  C.  C. 
A.  877.  The  court  said  that  the  inference 
was  that  the  element  of  wilfulness  was 
not  present,  but  that  the  act  was  commit- 
ted on  a  sudden  impulse. 
L..R.A.1916A. 


97  As   where   a    servant   used   a    hoist   to- 
ascend  to  a  platform,  in  contravention  of  a 
prohibitory  notice,  but  the  trial  judge  did 
not   find   that   he  knew  of  the  prohibition. 
McArthur   v.   McQueen    (1901)    3   Sc.    Sess. 
Cas.   5th   series,   1010,  38   Scot.   L.   R.   732, 
9  Scot.  L.  T.  114. 

A  breach  of  a  rule  as  to  mines,  unknown 
to  the  servant,  where  his  ignorance  is  due 
to  mere  negligence,  is  not  "serious  or  wilful 
misconduct."  M'Nicol  v.  Spiers  (1899)  1 
Sc.  Sess.  Cas.  5th  series,  604,  36  Scot. 
L.  R.  428,  6  Scot.  L.  T.  353. 

98  The  county  court  judge  may  find  that 
a   girl    fourteen   years   old   employed   as    a 
soda  water  bottler  was  not  guilty  of  serious 
and  wilful  misconduct  in  neglecting  to  wear 
gauntlets  which  had  been  furnished  by  the 
employer   and   which   by   the   special   rule* 
of  the  establishment  and  by  special  orders 
given    directly    to    the    workmen    she    was 
required  to  use,  where  the  evidence  showed 
that  the  forewoman  had  allowed  her  to  dis- 
regard the  rules  but  verbally  told  her  to 
obey   them,   and   had   verbally   told   her   to- 
put  them  on   in  case  the  employer  should 
come    to    see    her.      Casey    v.    Humphries 
(1913)    6   B.  W.   C.   C.    (Eng.)    520,    [1913] 
W.   N.    221,   29    Times   L.   R.    647,   57    Sol. 
Jo.  716. 

The  use  by  an  employee  for  his  own  pur- 
pose of  a  lift  upon  which  was  a  notice 
that  no  one  was  allowed  to  use  the  lift 
except  in  charge  of  a  load  does  not  amount 
to  serious  and  wilful  misconduct,  where 
other  employees  had  used  the  lift  in  like 
manner  and  the  notice  was  not  intended 
as  a  warning  against  danger  and  no  dan- 
ger could  have  been  anticipated  from  the 
use  of  the  lift  by  an  individual  workman. 
Johnson  v.  Marshall  [1906]  A.  C.  (Eng.) 
409,  75  L.  J.  K.  B.  N.  S.  868,  94  L.  T. 
N.  S.  828,  22  Times  L.  R.  565,  5  Ann.  Cas. 
630. 

99  M'Nicol   v.    Spiers    (1899)    1    Sc.    Sess. 
Cas.  5th  series,  604,  36  Scot.  L.  R.  428,  6 
Scot.   L.   T.  353. 

1  Where  a  workman,  except  for  some  dom- 
inant reason,  is  in  breach  of  a  duly  pub- 
lished statutory  rule,  and  an  injury  results 
therefrom,  his  de  facto  ignorance  of  the 
rule  can  in  no  circumstances  prevent  the 
injury  from  being  attributable  to  his  "se- 
rious and  wilful"  misconduct.  Dobson  v 


SERIOUS  AND  WILFUL  MISCONDUCT. 


77 


for  the  safety  of  the  employee.8    Where 
a  workman  does  a  dangerous  act  contrary 


to  the  express  orders  of  his  superior,  and 
is  injured,  the  accident  is  one  intention- 


United  Collieries  (1905)  8  Sc.  Sess.  Gas. 
5th  series  (Scot.)  241  (miner  carrying  cart- 
ridge not  in  a  case,  with  naked  light  in  his 
cap). 

2  No  recovery  was  allowed  where  a  girl 
engaged  in  passing  sheaves  on  a  threshing 
machine  undertook,  in  disobedience  to  an 
express  prohibition,  to  step  across  the  open- 
ing through  which  they  were  fed  to  the 
machine,  merely  for  the  purpose  of  speak- 
ing to  a  friend,  and  without  any  necessity 
arising  out  of  the  work.  Callaghan  v.  Max- 
well (1900)  2'Sc.  Sess.  Cas.  5th  series,  420, 
37  Scot.  L.  R.  313,  7  Scot.  L.  T.  339. 

Xor  where  a  miner  infringed  a  rule  for- 
bidding him  to  carry  a  naked  light  on  his 
cap  while  carrying  cartridges  not  inclosed 
in  a  case.  Dailly  v.  Watson  (1900)  2  Sc. 
Sess.  Cas.  5th  series,  1044,  37  Scot.  L.  R. 
782,  7  Scot.  L.  T.  73. 

Nor  where  miners  contravene  a  special 
rule  framed  under  the  coal  mines  regula- 
tion act.  United  Collieries  v.  M'Ghie  (1904) 
6  Sc.  Sess.  Cas.  5th  series,  808,  41  Scot. 
L.  R.  705,  12  Scot.  L.  T.  650;  Lynch  v. 
Baird  (1904)  6  Sc.  Sess.  Cas.  5th  series, 
271,  41  Scot.  L.  R.  214,  11  Scot.  L.  T.  597 
(facts,  however,  did  not  show  contraven- 
tion). 

Nor  where  a  miner  violated  a  rule  re- 
quiring the  erection  of  props  at  specified 
intervals.  O'Hara  v.  Cadzow  Coal  Co. 
(1903)  5  Sc.  Sess.  Cas.  5th  series  (Scot.) 
439.  The  Lord  Justice  Clerk  said:  "The 
rule  is  an  imperative  one,  and  is  plainly 
meant  to  insure  the  safety  of  the  worker, 
and  the  failure  to  carry  it  out  is  plainly 
'serious  misconduct,'  as  adding  greatly  to 
danger.  That  it  was  wilful  is  also  plain, 
for  there  is  no  suggestion  of  an  excuse 
for  the  disobedience." 

Nor  where  a  miner  failed  to  get  into 
a  manhole  in  the  main  haulage  road  of  the 
mine,  after  he  had  been  warned  by  a  fellow 
workman  that  a  train  of  cars  was  approach- 
ing. John  v.  Albion  Coal  Co.  (1901)  18 
Times  L.  R.  (Eng.)  27,  65  J.  P.  788. 

Nor  where  the  servant  cleaned  machin- 
ery in  motion,  such  an  act  being  forbidden 
by  a  rule  known  to  him.  Guthrie  v.  Boase 
Spinning  Co.  (1901)  3  Sc.  Sess.  Cas.  5th 
series,  769,  38  Scot.  L.  R.  483. 

Nor  where  an  engine-driver  left  the  foot 
plate  of  the  engine  while  in  motion,  con- 
trary to  rules.  Bist  v.  London  &  S.  W.  R. 
Co.  [1907]  A.  C.  (Eng.)  209,  76  L.  J.  K.  B. 
N.  S.  703,  96  L.  T.  N.  S.  750,  23  Times 
L.  R.  471,  8  Ann.  Cas.  1;  Jones  v.  London 
&  S.  W.  R.  Co.  (1901)  3  W.  C.  C.  (Eng.)  46. 

Nor  where  a  workman  failed  to  use  a 
guard  to  a  saw  which  he  had  been  directed 
to  use  by  both  the  foreman  and  a  factory 
inspector.  Brooker  v.  Warren  [1907]  23 
Times  L.  R.  (Eng.)  201. 

The  disobedience  by  boys  of  positive  di- 
rections not  to  go  to  a  certain  dangerous 
place  is  "serious  and  wilful  misconduct." 
Powell  v.  Lanarkshire  Steel  Co.  (1904)  6 
Sc.  Sess.  Cas.  5th  series  (Scot.)  1039. 
L.R.A.1916A. 


A  deliberate  breach  of  a  regulation  for- 
bidding the  use  of  a  freight  elevator  to 
reach  another  floor,  committed  by  an  in- 
experienced workman  after  two  warnings, 
is  serious  and  wilful  misconduct.  Granick 
v.  British  Columbia  Sugar  Ref.  Co.  (1909) 
14  B.  C.  251. 

The  breach  of  a  general  rule  in  a  mine 
and  disobedience  of  the  order  of  a  deputy 
is  serious  and  wilful  misconduct.  Watson 
v.  Butterley  Co.  (1902;  C.  C.)  114  L.  T. 
Jo.  (Eng.)  178,  5  W.  C.  C.  51. 

Where  a  miner  after  lighting  a  fuse  and 
retiring  to  a  safe  place  waits  only  three 
minutes  before  returning  to  see  whether 
or  not  the  fuse  has  gone  out,  instead  of 
the  thirty  minutes  required  by  the  rules 
of  the  mine,  he  is  guilty  of  serious  and 
wilful  misconduct  which  prevents  a  recov- 
ery of  compensation.  Waddell  v.  Coltness 
Iron  Co.  [1913]  W.  C.  &  Ins.  Rep.  42,  50 
Scot.  L.  R.  29,  6  B.  W.  C.  C.  306. 

A  workman  employed  in  a  mine,  who, 
despite  warnings  and  in  violation  of  the 
orders  of  the  manager,  rides  upon  a  truck 
of  ore  at  point  where  it  will  travel  about 
6  miles  an  hour  by  gravitation  and  where 
the  track  is  curving  and  only  temporary, 
is  guilty  of  serious  and  wilful  misconduct. 
Rowe  v.  Reynolds  (1910)  12  West  Austr. 
L.  R.  75. 

A  collier  who  permits  his  naked  light 
to  remain  in  such  a  position  that  it  ignites 
gunpowder,  and  thereby  commits  a  breach 
of  a  special  rule,  is  guilty  of  wilful  and 
serious  misconduct  which  precludes  a  recov- 
ery. Donnachie  v.  United  Collieries  [1910] 
S.  C.  503,  47  Scot.  L.  R.  412. 

The  violation  of  a  rule  forbidding  the 
opening  of  the  gate  fencing  to  a  shaft  be- 
fore the  cage  is  stopped  is  "serious  and  wil- 
ful" misconduct.  George  v.  Glasgow  Coal  Co. 
[1909]  A.  C.  (Eng.)  123,  78  L.  J.  P.  C. 
N.  S.  47,  99  L.  T.  N.  S.  782,  25  Times 
L.  R.  57  [1909]  S.  C.  (H.  L.)  1,  46  Scot. 
L.  R.  28.  Lord  Loreburn,  L.  C.,  and  Lord 
Robertson  both  expressed  the  opinion  that 
the  violation  of  a  rule  was  not  prima  facie 
evidence  of  "serious  and  wilful"  misconduct. 

A  charwoman  who  in  hanging  out  clothes 
stands  upon  the  ledge  of  a  glass  frame, 
which  she  has  been  forbidden  to  do,  is 
guilty  of  serious  and  wilful  misconduct. 
Beale  v.  Fox  (1909;  C.  C.)  126  L.  T.  Jo. 
(Eng.)  257,  2  B.  W.  C.  C.  467. 

In  Hill  v.  Granby  Consol.  Mines  (1906) 
12  B.  C.  118,  where  a  brakeman  stood  on 
the  platform  of  a  car  in  such  a  position 
that  when  it  entered  a  shed  projecting  from 
the  mouth  of  a  tunnel  he  would  inevitably 
be  killed,  Duff,  J.,  said:  "Any  neglect  is 
'serious  neglect'  within  the  meaning  of  the 
act,  which  in  the  view  of  reasonable  persons, 
.  .  .  exposes  anybody  (including  the 
person  guilty  of  it)  to  the  risks  of  serious 
injury.  .  .  .  The  test  is  the  apprehend- 
ed, as  distinguished  from  the  actual,  conse- 
quences." 


78 


WORKMEN'S  COMPENSATION. 


ally  produced  within  the  meaning  of  the 
Quebec  act.8  Intoxication  has  been  held 
to  be  serious  and  wilful  misconduct.4 
As  to  whether  injuries  by  accident  re- 
ceived by  an  employee  while  he  is  in- 
toxicated "arise  out  of  and  in  the  course 
of  his  employment,"  see  note  47  ante. 

The  making  of  a  false  representation 
by  an  infant  that  he  is  of  full  age  in 
order  to  secure  employment  is  not  "se- 
rious and  wilful  misconduct  or  serious 
neglect,"  where  it  appears  that  the  ac- 
cident is  not  solely  attributable  to  the 
misrepresentation.6  It  is  to  be  noted 
that  under  the  act  of  1906,  serious  and 
wilful  misconduct  is  not  a  bar  to  com- 
pensation where  the  injury  results  in 
death  or  in  serious  and  permanent  dis- 
ablement.6 What  constitutes  serious  and 
permanent  disablement  has  been  passed 
upon  in  a  few  cases.7 


Where  the  county  court  judge  on  the 
hearing  permitted  an  amendment  so  as- 
to  allow  the  employer  to  set  up  the  de- 
fense of  serious  and  wilful  misconduct, 
which  was  not  raised  by  the  answer  nor 
in  the  correspondence  between  the 
parties,  the  workman  is  entitled  to  an 
adjournment  in  order  to  call  evidence 
in  rebuttal.8 

The  phrase  "serious  neglect"  in  §  2r 
subsec.  (c)  of  the  British  Columbia  act 
does  not  refer  to  the  conduct  of  the  work- 
man after  the  injury.9 

Under  the  Quebec  act,  the  compensa- 
tion recoverable  by  an  injured  employee 
is  reducible  to  the  extent  that  the  in- 
juries were  caused  by  the  fault  of  the 
workman.10 

Serious  and  wilful  misconduct  to  pre- 
vent a  recovery  must  be  the  proximate 
cause  of  the  injury.11  And  the  burden 


8  Jett6    v.    Grand    Trunk    R.    Co.     (1911)  I 
Rap.  Jud.  Quebec,  40  C.  S.  204   (brakeman 
jumped  on   a  moving  train). 

4  Going  up  a  ladder  while  intoxicated, 
carrying  unnecessarily  a  large  piece  of  tim- 
ber and  failing  to  use  the  hands  in  the 
proper  and  ordinary  way  for  support,  is 
serious  and  wilful  misconduct.  Burrell  v. 
Avis  (1898;  C.  C.)  106  L.  T.  Jo.  (Eng.) 
61,  1  W.  C.  C.  129. 

Being  drunk  and  unfit  to  work  is  serious 
and  wilful  misconduct.  M'Groarty  v.  Brown 
(1906)  8  Sc.  Sess.  Cas.  5th  series  (Scot.) 
809. 

SDarnley  v.  Canadian  P.  R.  Co.  (1908) 
14  B.  C.  15,  2  B.  W.  C.  C.  505. 

6  "I  think  that  the  'serious  and  wilful 
misconduct'  section  of  the  act — §  1,  subsec. 
(2)  (c) — really  throws  great  light  on  the 
present  case.  It  is  not  every  misconduct 
that  prevents  a  workman  from  recovering 
compensation.  It  must  be  proved  that  the 
misconduct  was  'serious  and  wilful;'  and 
although  the  present  case  does  not  come 
under  that  provision, — because  for  some 
reason  the  section  does  not  apply  to  a 
case  where  the  accident  results  in  death, 
— still  the  principle  that  it  is  not  every 
misconduct  which  disentitles  a  workman 
to  the  benefit  of  the  act  must  apply  in 
this  case  as  in  every  other."  Cozens-Hardy, 
M.  R.,  in  Robertson  v.  Allan  Bros.  &  Co. 
(1908)  1  B.  W.  C.  C.  (Eng.)  172. 

Serious  and  wilful  misconduct  is  not  ma- 
terial where  the  workman  has  been  serious- 
ly and  permanently  disabled.  Jackson  v. 
Denton  Colliery  Co.  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  91,  110  L.  T.  N.  S.  559,  7 
B.  W.  C.  C.  92. 

In  Weighill  v.  South  Hetton  Coal  Co. 
[1911]  2  K.  B.  (Eng.)  757,  in  discussing 
the  effect  of  the  provision  of  the  act  of 
1906,  which  provides  that  serious  and  wil- 
ful misconduct  is  not  a  bar  to  compensa- 
tion where  the  injury  results  in  "death 
or  serious  and  permanent  disablement," 
Cozens-Hardy,  M.  R.,  said:  "Serious  and 
wilful  misconduct  within  the  sphere  of  the 
L.R.A.1916A. 


employment  does  not  prevent  the  work- 
man's dependents  from  claiming  compensa- 
tion: serious  and  wilful  misconduct  outside 
the  sphere  of  his  employment  is  entirely 
different.  Serious  and  wilful  misconduct 
outside  the  sphere  of  his  employment  does 
not  bring  within  the  sphere  of  the  employ- 
ment that  which  but  for  the  serious  and 
wilful  misconduct  would  be  outside  of  it." 
Although  a  collier  in  going  into  a  danger- 
ous working  in  disobedience  to  the  colliery 
special  rules,  and  against  the  warnings  of 
a.  fireman  or  overlooker,  was  guilty  of  "seri- 
ous and  wilful"  misconduct,  yet  if  he  did 
so  in  an  honest  attempt  to  further  that 
which  he  was  instructed  to  effect,  his  de- 
pendents may  secure  compensation  tor  his 
death,  which  resulted  from  such  act.  Hard- 
ing v.  Brynddu  Colliery  Co.  [1911]  2  K. 

B.  (Eng.)    747,  80  L.  J.  K.  B.  N.  S.  1052, 
105  L.  T.  N.  S.  55,  27  Times  L.  R.  500,  55 
Sol.  Jo.  599,  4  B.  W.  C.  C.  269. 

7  A   workman   who   has   lost    two   fingers 
of  his  right  hand  is  seriously  and  perma- 
nently   disabled,    and    is    entitled    to    com- 
pensation notwithstanding  the  injury  was 
occasioned  by  his  "serious  and  wilful"  mis- 
conduct.   Hopwood  v.  Olive  (1910)  102  L.  T. 
N.  S.    (Eng.)    790,  3  B.  W.  C.  C.  357. 

The  loss  of  the  top  joint  of  the  middle 
finger  of  the  right  hand  of  a  machinist 
may  be  found 'to  be  serious  and  permanent 
disablement  within  the  meaning  of  §  1  (2) 
(3)  of  the  act.  Brewer  v.  Smith,  (1913) 
6  B.  W.  C.  C.  (Eng.)  651. 

8  Casey  v.  Humphries  [1913]  W.  N.  (Eng.) 
221,  29   Times  L.  R.  647,  57   Sol.  Jo.   716r 
[1913]    W.   C.   &    Ins.   Rep.   485,   6    B.   W. 

C.  C.   520,   4   N.   C.   C.   A.   881. 

9 Powell  v.  Crow's  Nest  Pass  Coal  Co. 
(1915)  23  D.  L.  R.  (B.  C.)  57. 

W  Croteau  v.  Victoriaville  Furniture  Co. 
(1911)  Rap.  Jud.  Quebec,  40  C.  S.  44. 

11 A  breach  of  a  statutory  rule  as  to 
mines  is  "serious  and  wilful  misconduct," 
but  such  breach  is  not  a  bar  to  recovery, 
unless  it  is  the  cause  of  the  accident.  Pra- 


ARBITRATION  OF  DISPUTES. 


79 


of  proving  that  the  accident  was  due  to 
the  serious  and  wilful  misconduct  of  the 
workman  is  upon  the  employer.12  Wheth- 
er or  not  a  workman  is  guilty  of  serious 
or  wilful  misconduct  is  a  question  of 
fact.18 

ff.  Arbitration    for    settlement    of    dis- 
jmtes   (§  1,  subsec.  3) . 

Generally  as  to  the  powers  of  an  arbi- 


trator  appointed  under  this  subsection, 
see  post,  177. 

In  order  that  this  subsection  may  ap- 
ply, it  must  be  shown  that  a  question  has 
arisen  and  that  it  has  not  been  settled 
by  agreement.14  Where  a  question  as  to 
the  amount  or  duration  of  compensation 
has  been  settled  by  agreement,  there  is 
no  room  for  arbitration.  The  workman's 
proper  course  is  to  get  a  memorandum  of 


ties  v.  Broxburn  Oil  Co.  [1906-07]  S.  C. 
(Scot.)  581. 

In  order  that  a  breach  of  a  statutory 
rule  as  to  mines  shall  amount  to  "serious 
and  wilful  misconduct,"  it  must  be  shown 
to  have  been  the  cause  of  the  accident. 
Allan  v.  Glenborg  Union  Fire  Clay  Co. 
[190(5-07]  S.  C.  (Scot.)  967. 

The  death  of  a  miner  killed  while  riding 
on  top  of  a  loaded  hutch  in  the  mine,  in 
breach  of  one  of  the  rules  in  force  in  the 
mine,  by  the  fall  of  a  stone  from  the  roof 
of  the  tunnel  in  which  the  hutch  was  run- 
ning, is  not  "attributable"  to  his  serious 
and  wilful  misconduct.  Glasgow  Coal  Co. 
v.  Sneddon  (1905)  7  Sc.  Sess.  Cas.  5th 
series  (Scot.)  485.  Lord  M'Laren  observed: 
"What  is  included  under  the  word  'attribu- 
table?' I  think  that  under  that  word  there 
must  be  some  causal  relation  between  the 
misconduct  of  a  workman  and  the  injury 
which  he  suffers.  .  .  .  It  is  enough  that 
it  is  a  material  cause  that  in  some  way 
contributes  to  the  unfortunate  result. 
Therefore  I  think  that  the  question  to  be 
considered  under  the  word  'attributable'  is 
very  much  the  same  as  we  have  to  con- 
sider in  cases  at  common  law  where  there 
is  fault  on  the  part  of  employer  or  his 
servant,  and  the  meaning  is  that  the  in- 
jury was  either  caused  solely  by  the  work- 
man's own  fault,  or  was  contributed  to 
materially  by  his  act  or  fault." 

12  British    Columbia    Sugar    Ref.    Co.    v. 
Granick    (1910)    44   Can.   S.  C.   105,  affirm- 
ing 15  B.  C.  198. 

13  Johnson     v.     Marshall     [1906]     A.     C. 
(Eng.)    409,  75   L.  J.   K.   B.   N.   S.   868,   94 
L.   T.   N.    S.    828,   22    Times    L.   R.   565,    5 
Ann.   Cas.   630,   8   W.   C.   C.    10;    Casey   v. 
Humphries    (1913)    6    B.   W.    C.   C.    (Eng.) 
520,    [1913]    W.    N.    221,    29    Times    L.    R. 
647,  57  Sol.  Jo.  716. 

Whether  or  not  a  workman  is  guilty 
of  serious  and  wilful  misconduct  is  a  ques- 
tion of  fact,  and  the  court  will  not  inter- 
fere with  the  finding  of  the  arbiter.  Leish- 
mann  v.  Dixon  [1910]  S.  C.  498,  47  Scot. 
L.  R.  410,  3  B.  W.  C.  C.  560. 

Whether  the  fact  that  a  farm  servant 
fastened  the  reins  to  the  breeching,  instead 
of  holding  them  in  his  hand,  in  violation 
of  the  general  turnpike  act,  amounts  to 
serious  and  wilful  misconduct,  is  a  ques- 
tion of  fact,  and  the  finding  by  the  sheriff- 
substitute  that  it  did  not  will  not  be  .re- 
viewed on  appeal.  Mitchell  v.  Whitton 
[1906-07]  S.  C.  (Scot.)  1267. 

1*  Field  v.  Longden  [1902]  1  K.  B.  (Eng.) 
47,  71  L.  J.  K.  B.  N.  S.  120,  66  J.  P.  291, 
L.R.A.1916A. 


50  Week.  Rep.  212,  85  L.  T.  N.  S.  571, 
18  Times  L.  R.  65.  There  a  workman, 
having  been  incapacitated  for  work  by 
an  accident  arising  out  of,  and  in  the  course 
of,  his  employment,  his  employers  had, 
since  the  second  week  after  the  accident, 
paid  to  him,  by  way  of  compensation, 
weekly  payments  of  the  full  amount  men- 
tioned in  schedule  I.,  §  1  (b)  (see  subtitle 
B.  post),  and  promised  to  continue  to  do  so 
during  the  period  of  his  incapacity;  but 
the  workman,  nevertheless,  filed  a  request 
for  arbitration  in  the  county  court,  and 
the  county  court  judge  made  an  award  for 
compensation  in  his  favor.  It  was  held, 
that,  under  the  subsection  it  was  a  con- 
dition precedent  to  the  jurisdiction  of  the 
county  court  judge  that  a  question  should 
have  arisen  as  to  the  liability  to  pay,  or 
as  to  the  amount  or  duration  of  compen- 
sation under  the  act,  and  that,  no  such 
question  having  arisen,  the  county  court 
judge  had  no  jurisdiction  to  make  an  award. 

The  petition  for  arbitration  is  incompe- 
tent where,  at  the  date  when  the  petition 
was  presented,  no  dispute  had  arisen  be- 
tween the  parties  as  to  compensation,  and 
the  compensation  was  not  in  arrears.  Cale- 
don  Shipbuilding  &  Engineering  Co.  v.  Ken- 
nedy (1906)  8  Sc.  Sess.  Cas.  5th  series 
(Scot.)  960. 

There  is  no  dispute  so  as  to  give  the 
county  court  power  to  award  costs  where 
the  employers,  not  knowing  that  the  in- 
jured workman  was  a  minor,  paid  him 
only  a  portion  of  the  compensation  to 
which  he  as  a  minor  was  entitled,  but 
eight  days  after  receiving  notice  of  that 
fact  and  a  demand  for  the  balance  tendered 
such  balance,  which  was  refused  because 
certain  alleged  costs  were  not  tendered. 
Smith  v.  Abbey  Park  Steam  Laundry  Co. 
(1909)  2  B.  W.  C.  C.  (Eng.)  142. 

A  petition  for  arbitration  is  incompe- 
tent where,  at  the  date  when  the  petition 
was  presented,  no  question  had  arisen  be- 
tween the  parties  as  to  the  duration  of  the 
compensation;  and  the  mere  fact  that  there 
was  no  agreement  between  the  parties  ca- 
pable of  registration  does  not  show  that 
a  question  had  arisen  between  them,  so 
as  to  entitle  the  workman  to  present  a 
petition  for  arbitration.  Gourlay  Bros.  v. 
Sweeney  (1906)  8  Sc.  Sess.  Cas.  5th  series 
(Scot.)  965. 

The  refusal  of  the  employer,  who  had 
been  voluntarily  paying  compensation  to 
a  workman,  to  sign  an  agreement,  does  not 
give  the  county  court  judge  jurisdiction 
to  make  an  award,  since  it  does  not  pre- 


80 


WORKMEN'S  COMPENSATION. 


agreement  recorded.16  An  implied  agree- 
ment is  sufficient  to  take  away  the 
jurisdiction  of  the  arbitrator.16  The  dis- 
pute to  be  settled  by  the  arbitrator  may 
be  as  to  the  liability  to  pay  compensa- 
tion,17 as  to  the  amount  of  compensation 
payable,18  or  as  to  the  duration  of  the 
incapacity.19  The  dispute  must  exist  at 
the  present  time ;  if  the  employer  is  pay- 
ing full  compensation  there  is  no  ques- 


tion for  arbitration,  although  some  dis- 
pute may  arise  in  the  future.20 

An  appeal  from  a  decision  of  the  coun- 
ty court  judge  dismissing  an  application 
for  arbitration  upon  the  ground  that  no 
question  has  arisen  cannot  be  sustained 
upon  the  ground  that  the  correspondence 
between  the  parties  showed  that  a  differ- 
ence had  arisen  which  was  not  raised 


sent  a  question  as  to  the  liability  to. pay 
compensation,  or  as  to  the  amount  of  dura- 
tion of  compensation.  Mercer  v.  Hilton 
(1909)  3  B.  W.  C.  C.  (Eng.)  6. 

iSDunlop  v.  Rankin  (1901)  4  Sc.  Sess. 
Gas.  5th  series,  203,  39  Scot.  L.  R.  146. 
See  also  Cochrane  v.  Traill  (Ct.  of  Sess.) 
2  F.  (Scot.)  794,  as  cited  in  2  Mew's  Dig. 
Supp.  1576. 

16  Where  there  is  an  implied  agreement 
between  the  parties,  there  is  no  jurisdiction 
for  an  arbitrator.  Jones  v.  Great  Central 
R.  Co.  (1901)  4  W.  C.  C.  (Eng.)  23;  Web- 
ster v.  London  &  N.  W.  R.  Co.  (1901; 
C.  C.)  3  W.  C.  C.  (Eng.)  52;  Busby  v. 
Richardson  (1901;  C.  C.)  3  W.  C.  C.  (Eng.) 
54;  Trenear  v.  Wells  (1900;  C.  C.)  3  W. 
C.  C.  (Eng.)  58. 

n  In  Barren  v.  Carmichael  (1912)  5  B. 
W.  C.  C.  (Eng.)  436,  Buckley,  L,  J.,  said: 
"Jurisdiction  under  the  act  arises  only  if 
a  question  arises  upon  some  one  of  three 
subject-matters:  firstly,  liability  to  pay 
compensation;  secondly,  amount  of  com- 
pensation; and,  thirdly,  duration  of  compen- 
sation." 

18  The  county  court  judge  has  jurisdiction 
where  the  correspondence  between  the  par- 
ties   shows    that    although    the    employer 
agreed  that   the  workman  was  entitled  to 
compensation,   they    could   not   agree   upon 
the    amount    thereof.      Brooks    v.    Knowles 
(1911)   5  B.  W.  C.  C.   (Eng.)   15. 

Where  the  applicant  filed  an  application 
for  compensation  at  12s.  6d.,  the  employer 
admitting  liability  and  present  total  in- 
capacity and  submitting  to  an  award  of 
10s.  per  week  during  total  disability,  the 
amount  payable  during  partial  incapacity 
to  be  settled  thereafter,  there  was  a  dis- 
pute at  the  time  of  application  so  as  to 
give  the  county  court  judge  jurisdiction, 
although  the  workman  had  before  the  hear- 
ing agreed  to  accept  10s.  compensation  but 
objected  to  the  limitation  to  total  inca- 
pacity. Higgins  v.  Poulson  (1911)  5  B. 
W.  C.  C.  (Eng.)  66. 

19  Arbitration  is  competent  although  the 
employers  admitted  liability  under  the  act 
and  there  was  no  dispute  as  to   the  com- 
pensation, but  the  employers  insisted  that 
the  workman  sign  a  receipt  which  provided 
that   the   payment   admitted   liability   only 
for  compensation  to  date  of  payment,  and 
further  liability,  if  any,  was  to  be  deter- 
mined week  by  week.     Summerlee  Iron  Co. 
v.   Freeland    [1913]    A.   C.    (Eng.)    221,   82 
L.  J.  P.  C.  N.  S.  102,  108  L.  T.  N.  S.  465, 
29  Times  L.  R.  277,  57  Sol.  Jo.  281,  [1913] 
W.  N.  34,    [1913]   W.   C.  &  Ins.  Rep.  302, 
L.R.A.1916A. 


6  B.  W.  C.  C.  255,  [1913]   S.  C.   (H.  L.)   3. 

Where  the  employer  raises  the  question 
of  duration  of  incapacity  by  his  answer,  he 
cannot  be  heard  to  say  that  there  was  no 
dispute  at  the  time  of  the  application. 
Ban-on  v.  Carmichael  (1912)  5  B.  W.  C.  C. 
(Eng.)  436. 

An  application  for  arbitration  is  compe- 
tent where,  although  the  employers  were 
paying  full  compensation  and  had  made  no 
threat  to  stop  payment,  they  had  barred 
the  recording  of  a  memorandum  of  agree- 
ment by  a  receipt  signed  by  the  applicant 
which  provided  that  the  payment  should 
continue  only  while  the  employers  were 
of  the  opinion  that  the  incapacity  contin- 
ued. Brown  v.  Hunter  (1912)  49  Scot. 
L.  R.  695,  5  B.  W.  C.  C.  589. 

A  question  has  arisen  for  arbitration 
under  §  1  (3)  of  the  act  where  the  employ- 
er, although  admitting  liability  to  pay 
compensation  during  total  incapacity,  re- 
fuses to  admit  liability  to  pay  compensa- 
tion in  event  of  partial  incapacity  and 
the  workman  declines  to  accept  an  admis- 
sion limited  to  total  incapacity  only.  Coop- 
er v.  Wales  (1915)  31  Times  L.  R.  (Eng.) 
506. 

20  WThere  the  employer  was  paying  full 
compensation,  the  workman  was  not  en- 
titled to  arbitration  merely  because  a  ques- 
tion might  thereafter  arise  as  to  whether 
the  compensation  which  was  being  made 
may  or  may  not  have  to  be  reviewed  in 
accordance  with  condition '  of  health  and 
other  circumstances  affecting  the  workman. 
Payne  v.  Fortescue  [1912]  3  K.  B.  (Eng.) 
346,  81  L.  J.  K.  B.  X.  S.  1191,  107  L.  T. 
N.  S.  136,  5.7  Sol.  Jo.  81,  [1912]  W.  N. 
216,  5  B.  W.  C.  C.  634. 

No  question  for  arbitration  has  arisen 
where  the  employers  have  admitted  lia- 
bility and  paid  full  compensation  up  to 
the  day  of  the  application  for  arbitration, 
although  the  employers  refused  to  agree 
to  pay  compensation  during  partial  inca- 
pacity. Bedwell  v.  London  Electric  R.  Co. 
(1914)  7  B.  W.  C.  C:  (Eng.)  685. 

There  is  no  question  for  arbitration 
where  incapacity  and  liability  are  admitted 
and  full  compensation  being  paid,  although 
the  employer  refused  to  make  any  agree- 
ment as  to  payment  after  total  incapacity 
had  ceased,  but  was  willing  to  sign  an 
agreement  that  the  amount  of  compensa- 
tion payable  during  partial  incapacity  was 
to  l)e  settled  afterward.  Sampson  v.  Gen- 
eral Steam  Nav.  Co.  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  36,  7  B.  W.  C.  C.  107. 


WHERE  ACTION  FOR  DAMAGES  HAS  FAILED. 


81 


when    the    request   for   arbitration    was 
filed.21 

Section  1,  subsec.  3,  with  reference  to 
arbitration,  refers  only  to  questions  be- 
tween the  undertaker  and  the  workman; 
the  right  of  indemnity  given  by  §  4  in 
favor  of  the  undertaker  against  a  third 
person  who  would  have  been  liable  but 
for  the  provisions  of  $  4  may  be  enforced 
in  the  high  court.22 

h.  Recovery  of  compensation  u-here 
action  for  damages  has  failed  (§ 
1,  subsec.  4). 

The  cases  construing  the  provision  rel- 
ative to  the  alternative  remedies  open 
to  an  injured  workman  may  be  read  with 
profit  in  connection  with  the  cases  con- 
struing this  subsection.  See  ante,  72. 

As  to  election  to  come  under  the  Amer- 
ican statutes,  see  post,  219. 

As  to  exclusiveness  of  remedy  fur- 
nished by  American  statutes,  see  post, 
223. 

This  subsection  is  applicable  where  it 
is  found  that  no  cause  of  action  at  com- 
mon law  and  under  the  act  of  1880  was 
stated  by  the  averments  of  the  com- 


plaint.23 Where  a  workman  who  has 
failed  in  an  action  to  recover  damages  is 
desirous  of  having  compensation  for  his 
injury  assessed  under  the  act,  he  must 
follow  the  procedure  prescribed  by  this 
subsection,  and  must  apply,  then  and 
there,  to  the  judge  trying  the  action,  for 
an  assessment  of  compensation;  he  can- 
not at  a  subsequent  date  initiate  inde- 
j  pendent  proceedings  against  his  employ- 
I  er  by  a  request  for  arbitration  under  the 
j  act.24  If  a  workman  fails  in  an  action 
to  recover  damages  for  the  injury,  the 
trial  court  is  the  proper  tribunal  to  as- 
sess compensation.25  And  it  is  only 
when  the  action  at  law  is  commenced 
within  six  months  after  the  injury  that 
compensation  may  be  awarded  upon  the 
failure  of  the  law  action.26 

A  workman  who  brings  an  action  at 
common  law  and  recovers  a  judgment  in 
the  trial  court  is  not  barred  from  subse- 
quently applying  for  compensation  upon 
his  judgment  being  reversed  by  a  higher 
court,  because  he  did  not  apply  at  the 
trial  court  for  the  assessment  of  compen- 
sation.27 And  the  fact  that  a  workman 
whose  action  under  the  employers'  lia- 
bility act  has  been  wrongfully  dismissed 


21  Wooder  v.  Lush   [1914]   7  B.  W.  C.  C. 
(Eng.)  673. 

22  Evans  v.  Cook    [1905]    1  K.  B.    (Eng.) 
53,  74  L.  J.  K.  B.  N.  S.  95,  92  L.  T.  N.  S. 
43,  21   Times  L.  R.  42,  56  Week.  Rep.  81. 

23  Henderson    v.    Glasgow     (1900)     2    Sc. 
Sess.    Cas.    5th    series,    1127,    37    Scot.    L. 
R.  857,  8  Scot.  L.  T.   118. 

In  Ivenhoe  Gold  Corp.  v.  Symonds  (1907) 
4  Austr.  C.  L.  R.  642,  it  was  held  that 
the  section  was  applicable  to  all  cases  in 
which  the  plaintiff's  action  failed  provided 
he  was  otherwise  entitled  to  recover  under 
the  statute  and  consequently  applied  to  a 
case  where  the  successful  defense  was  a 
confession  and  avoidance. 

24  By  bringing  an  action  at  common  law 
or    under    the    employers'    liability    act    of 
1880   a   workman   exercises   his   option   and 
the '  matter    is    at    an    end    unless    he    has 
expressly  brought  himself  within  the  pro- 
visions of  §   1,  subsec.  4;   he  cannot  after 
having    failed    in    his    law    action    launch 
proceedings  under  the  compensation  act   in 
respect  to   the   same   injuries.     Edwards  v. 
Godfrey    [1899]    2    Q.  'B.     (Eng.)    333,    68 
L.  J.  Q.  B.  N.  S.  666,  80  L.  T.  N.  S.  672, 
15   Times   L.    R.   365,   47    Week.   Rep.    551. 

See  also  Quinn  v.  Brown  (1906)  8  Sc. 
Sess.  Cas  5th  series  (Scot.)  855;  M'Gowan 
v.  Smith  [1906-07]  S.  C.  (Scot.)  548. 

25  Greenwood   v.    Greenwood    (1907;    Div. 
Ct.)   97  L.  T.  N.  S.   (Eng.)    771,  24  Times 
L.  R.  24,  1  B.  W.  C.  C.  247. 

Where  a  workman  has  failed  in  an  action 
at  law  to  recover  damages  on  the  ground 
that  the  master  was  not  guilty  of  negli- 
gence, the  trial  court  is  the  only  court 
in  which  compensation  may  ^e  assessed. 
L.R.A.1916A.  6 


McCormick  v.  Kelliher  Lumber  Co.  (1912) 
17  B.  C.  422,  6  B.  W.  C.  C.  947. 

Upon  the  failure  of  an  action  under  the 
employer's  liability  act  of  1880,  for  an 
injury  compensation  for  which  has  been 
assessed  under  the  compensation  act,  the 
court  before  whom  the  action  was  tried 
has  power  to  deal  with  the  costs  of  the 
action  including  the  proceedings  for  the 
assessment  of  compensation.  Cattermole  v. 
Atlantic  Transport  Co.  [1902]  1  K.  B. 
(Eng.)  204,  50  Week.  Rep.  129,  85  L.  T. 
N.  S.  513,  18  Times  L.  R.  102,  71  L.  J. 
K.  B.  N.  S.  173,  66  J.  P.  4. 

26Cribb  v.  Kynoch  [1908]  2  K.  B.  (Eng.) 
551,  77  L.  J.  K.  B.  N.  S.  1004,  99  L.  T. 
N.  S.  216,  24  Times  L.  R.  736,  52  Sol.  Jo. 
581,  1  B.  W.  C.  C.  43. 

An  application  for  the  assessment  of  com- 
pensation after  an  unsuccessful  action  for 
damages  against  the  employer  is  incom- 
petent where  the  action  was  not  raised 
within  six  months  after  the  accident.  Dur- 
kin  v.  Distillers  Co.  [1914;  L.  O.]  W.  C. 
&  Ins.  Rep.  (Eng.)  28,  as  cited  in  Law 
Reports  Current  Dig.  1914,  col.  808. 

27  McCormick  v.  Kelliher  Lumber  Co. 
(1913;  B.  C.)  7  B.  W.  C.  C.  1025.  The 
i'ourt  said:  ''Here  the  judgment  at  common 
law  was  in  favor  of  the  plaintiff;  and 
although  the  judgment  was  reversed  by 
this  court,  the  effect  of  that,  as  I  view 
it,  would  be  to  place  the  parties  back  in 
the  position  they  would  have  been  in  at 
the  trial  if  the  trial  judge  had  given  the 
judgment  which  this  court  held  should 
have  been  given.  The  plaintiff  would  then 
have  been  in  a  position  to  ask  for  an  assess- 
ment of  compensation." 


82 


WORKMEN'S  COMPENSATION. 


applies  for  an  assessment  of  compensa- 
tion under  the  act  does  not  estop  him 
from  prosecuting  an  appeal  from  the 
order  dismissing  the  action.28  If,  how- 
ever, the  claim  has  ripened  into  an  award 
of  compensation,  the  workman  is  es- 
topped from  proceeding  further  in  the 
action.29  It  was  argued  in  this  case 
that  as  the  workman  was  an  infant  he 
was  not  bound  by  the  award,  and  that 
the  court  should  proceed  upon  the  as- 
sumption that  the  option  had  not  been 
exercised  for  the  benefit  of  the  infant, 
but  it  was  held  that  the  court  had  no 
jurisdiction  to  inquire  into  that  question, 
and  it  must  treat  the  award  as  valid 
since  no  steps  had  been  taken  to  impeach 
it.  No  mention  is  made  of  a  former  de- 
cision of  the  same  court,  where  it  was 
held  that  the  compensation  act  by  in- 
cluding apprentices  in  the  general  word 
"workmen"  did  not  in  any  respect  alter 
the  law  applicable  to  contracts  made  by 
infants,  and  consequently  the  fact  that 
an  infant  who  had  been  injured  made  a 
claim  under  the  compensation  act,  and 
the  employers  had  agreed  to  pay  him, 
and  he  had  received  from  them  the  max- 
imum amount  payable  under  the  act  dur- 


ing his  incapacity,  did  not  preclude  him 
from  thereafter  bringing  an  action 
against  the  employers  for  negligence.30 
A  request  for  assessment  of  compensa- 
tion made  on  a  motion  to  apply  the  ver- 
dict in  favor  of  the  defenders  in  an  ac- 
tion brought  independently  of  the  act, 
is  in  time.81 

An  action  under  Lord  Campbell's  act 
is  an  action  "where  injury  caused  by  any 
accident"  within  the  meaning  of  §  1, 
subsec.  4  of  the  act.32 

Where  a  workman  has  brought  an  ac- 
tion at  common  law  or  under  the  employ- 
ers' liability  act  of  1880  and  failed  in 
such  action,  and  has  subsequently  ap- 
plied for  compensation,  it  is  generally 
held  that  whether  or  not  costs  should  be 
awarded  because  of  the  action  at  common 
law  or  under  the  employers'  liability  act 
is  discretionary  with  the  court.88  The 
costs  where  compensation  is  awarded 
after  the  bringing  of  an  unsuccessful  ac- 
tion at  law  for  damages  are  such  as 
would  have  been  incurred  had  the  plain- 
tiff limited  himself  to  proceedings  under 
the  act  less  the  extra  costs  occasioned  to 
the  defendant  by  reason  of  plaintiff's 
proceeding  originally  by  action.34 


28  Isaacson  T.  New  Grand  (Clapham  Junc- 
tion)   [1903]   1  K.  B.   (Eng.)    539,  72  L.  J. 
K.  B.  N.   S.  227,  88  L.  T.  N.   S.   291,   19 
Times  L.  R.  150.     It  was  pointed  out  that 
the  phrase  "the  action  shall  be  dismissed" 
could    not   have    reference   to   an    erroneous 
decision  of  the  county  court  judge. 

29  Neale  v.  Electric  &  Ordinance  Accesso- 
ries Co.  [1906]  2  K.  B.  (Eng.)  558,  75  L.  J. 
K.   B.   N.   S.   974,   95   L.   T.   N.   S.   592,   22 
Times  L.  R.   732. 

30  Stephens    v.   Dudbridge    Ironworks   Co. 
[1904]   2  K.  B.   (Eng.)   225,  73  L.  J.  K.  B. 
N.  S.  739,  68  J.  P.  437,  52  Week.  Rep.  644, 
90   L.   T.   N.   S.   838,   20   Times   L.   R.   492. 

SISlavin  v.  Train  (1911;  Ct.  Sess.)  49 
Scot.  L.  R.  93,  [1912]  W.  C.  Rep.  167,  5 
B.  W.  C.  C.  525. 

32  Potter  v.  Welch  [1914]  3  K.  B.  (Eng.) 
1020,   30   Times   L.   R.   644,    [1914]    W.   N. 
106,  317,  137  L.  T.  Jo.  290,  83  L.  J.  K.  B. 
N.  S.   1852,  7   B.  W.  C.  C.  738. 

33  It     is     discretionary     *vith     the     court 
whether    the    expenses    of    an    unsuccessful 
trial   in   an   action   for  damages   are   to   be 
deducted  from  a  subsequent  award  of  com- 
pensation.     M'Kenna    v.    United    Collieries 
(1906)    8   Sc.   Sess.   Cas.  5th   series    (Scot.) 
969. 

Costs  may  be  allowed  when  compensa- 
tion is  awarded  under  the  act  after  an 
action  independent  of  it  has  failed.  Wilson 
v.  Kelly  (1909)  14  B.  C.  436. 

The  costs  of  bringing  a  common-law  ac- 
tion, in  which  the  jury  found  for  the  de- 
fendants, may  be  deducted  from  the  amount 
awarded  the  workman  under  the  act.  Cohen 
v.  Seabrook  Bros.  (1908;  Div.  Ct.)  25  Times 
L.  R.  (Eng.)  176. 
L.R.A.1936A. 


In  Black  v.  Fife  Coal  Co.  (1909)  S.  C. 
152,  46  Scot.  L.  R.  191,  it  was  held  that 
where  an  action  had  been  brought  for  the 
death  of  a  miner  against  his  employers 
at  common  law  and  alternatively  for  a 
certain  sum  under  the  employers'  liability 
act,  and  the  defenders  denied  liability  but 
tendered  the  amount  claimed  as  the  amount 
to  which  the  pursuers  were  entitled  under 
the  compensation  act,  and  upon  the  tender 
being  refused  the  defenders  were  assoilzied 
at  common  law  and  found  liable  under  the 
employers'  liability  act  in  the  sum  tendered, 
the  pursuers  were  liable  in  expenses.  This 
decision,  however,  was  reversed  by  the 
House  of  Lords,  which  held  that  the  pur- 
suer was  entitled  to  the  costs.  5  B.  W. 
C.  C.  (Eng.)  217. 

A  workman  was  not  entitled  to  costs 
where  he  brought  an  action  under  the 
employers'  liability  act  of  1880  when  such 
action  was  dismissed  and  an  award  of 
compensation  made  under  §  1,  subsec.  4 
of  the  compensation  act,  and  it  appeared 
that  all  of  the  costs,  with  one  immaterial 
exception,  had  been  incurred  because  of 
the  bringing  of  the  action  under  the  em- 
ployers' liability  act.  Skeggs  v.  Keen 
(1899)  1  W.  C.  C.  (Eng.)  35. 

The  employers  are  entitled  to  deduct 
from  an  award  of  compensation  the  amount 
of  costs  which  they  recovered  in  an  action 
for  damages  for  the  same  injuries,  which 
action  had  failed.  Ferguson  v.  Brick  & 
Supplies  (1914;  Alberta)  7  B.  W.  C.  C. 
1054. 

34McCormick  v.  Kelliher  (1912)  7  D. 
L.  R.  (B.  C.)  732. 

Where    a    workman    fails    in    an    action 


NOTICE  OF  ACCIDENT. 


83 


An  appeal  from  an  order  merely  deal- 
ing with  a  question  of  costs,  arising  un- 
der this  subsection,  has  been  held  by  the 
court  of  appeal  to  lie  to  the  divisional 
court.35  But  it  was  subsequently  held 
by  the  divisional  court  that  such  an 
appeal  lay  to  the  court  of  appeal  and  not 
to  the  divisional.86 

As  to  the  awarding  of  costs  generally 
in  arbitration  proceedings  under  the  act, 
see  cases  construing  paragraph  7  of  the 
second  schedule,  cited  post,  181. 

IV-  Notice  of  the  accident  and  cla,im  for 
compensation  (§  2) . 

a.  Text  of  §  2. 

Sec.  2.  (1)  Proceedings  for  the  recov- 
ery under  this  act  of  compensation  for 
an  injury  shall  not  be  maintainable  un- 
less notice  of  the  accident  has  been  given 
as  soon  as  practicable  after  the  happen- 
ing thereof  and  before  the  workman  has 
voluntarily  left  the  employment  in  which 
he  was  injured,  and  unless  the  claim 
for  compensation  with  respect  to  such 
accident  has  been  made  within  six 
months  from  the  occurrence  of  the  acci- 
dent causing  the  injury,  or,  in  case  of 
death,  within  six  months  from  the  time 
of  death:  Provided  always  that  (a)  The 
want  of  or  any  defect  or  inaccuracy  in 
such  notice  shall  not  be  a  bar  to  the 
maintenance  of  such  proceedings,  if  it 
is  found  in  the  proceedings  for  settling 
the  claim  that  the  employer  is  not,  or 
would  not,  if  a  notice  or  an  amended 
notice  were  then  given  and  the  hearing 
postponed,  be  prejudiced  in  his  defense 
by  the  want,  defect,  or  inaccuracy,  or 
that  such  want,  defect,  or  inaccuracy  was 
occasioned  by  mistake,  absence  from  the 
United  Kingdom,  or  other  reasonable  j 
cause;  and 

(b)  The  failure  to  make  a  claim  with-  I 
in   the  period   above  specified  shall  not  | 
be  a  bar  to  the  maintenance  of  such  pro- 
ceedings, if  it  is  found  that  the  failure 
was     occasioned     by     mistake,     absence 
from  the  United  Kingdom,  or  other  rea- 
sonable cause. 


(2)  Notice  in  respect  of  an  injury  un- 
der this  act  shall  give  the  name  and  ad- 
dress  of  the   person   injured,   and   shall 
state  in  ordinary  language  the  cause  of 
the   injury   and   the   date  at   which   the 
accident  happened,  and  shall  be  served 
on   the   employer,   or,   if   there   is   more 
than   one   employer,   upon   one  of   such 
employers. 

(3)  The  notice  may  be  served  by  de- 
livering the  same  at,  or  sending  it  by 
post  in  a  registered  letter  addressed  to, 
the  residence  or  place  of  business  of  the 
person  on  whom  it  is  to  be  served. 

(4)  Where  the  employer  is  a  body  of 
persons,  corporate  or  unincorporate,  the 
notice  may  also  be  served  by  delivering 
the  same  at,  or  by  sending  it  by  post 
in  a  registered  letter  addressed  to,  the 
employer   at   the   office,   or,   if   there   be 
more    than   one   office,    any   one    of   the 
offices  of  such  body. 

[The  changes  in  $  2  are  matters  of  de- 
tail rather  than  of  essential  difference. 
The  provisions  in  subsec.  lr  in  respect 
to  the  giving  of  an  amended  notice,  and 
the  postponing  of  the  hearing,  the  mak- 
ing of  an  absence  from  the  United  King- 
dom as  a  sufficient  ground  for  failure 
to  give  notice,  and  the  provisions  in  re- 
spect to  entire  failure  to  give  notice, 
are  new.  The  earlier  act,  by  a  subsec- 
tion omitted  from  the  act  of  1906,  pro- 
vided as  follows: 

(4)  The  notice  may  also  be  served  by 
post,  by  a  registered  letter  addressed  to 
the  person  on  whom  it  is  to  be  served,  at 
his  last  known  place  of  residence  or 
place  of  business,  and  if  served  by  post 
shall  be  deemed  to  have  been  served  at 
the  time  when  the  letter  containing  the 
same  would  have  been  delivered  in  the 
ordinary  course  of  post;  and  in  proving 
the  service  of  such  notice  it  shall  be  suf- 
ficient to  prove  that  the  notice  was  prop- 
erly addressed  and  registered.] 

b.  In  general. 

As  to  notice  of  injury  under  the  Am- 
erican statutes,  see  post,  244. 


under  the  employers'  liability  act  and  an 
award  of  compensation  is  made  under  §  1, 
subsec.  4  of  the  compensation  act,  the  costs 
to  be  deducted  are  the  difference  between 
the  defendant's  bill  of  costs  in  the  action 
and  the  amount  of  costs  to  which  the 
plaintiff  would  have  been  entitled  had  he 
proceeded  originally  under  the  compensa- 
tion act.  Keane  v.  Nash  (1902;  C.  C.)  114 
L.  T.  Jo.  (Eng.)  102,  5  W.  C.  C.  53.  An 
appeal  from  this  decision  was  taken  to  the 
court  of  appeal,  but  it  was  there  held  that 
an  appeal  from  an  order  denying  a  review 
of  the  taxation  of  costs  lay  to  the  divisional 
L.R.A.1916A. 


court  and  not  to  the  court  of  appeal.  19 
Times  L.  R.  (Eng.)  419,  88  L.  T.  N.  S. 
790,  5  W.  C.  C.  142. 

35  Keane  v.  Nash    (Eng.)    supra. 

36  An  appeal  from  the  decision  of  a  county 
court   judge    in    deducting   from    an    award 
of    compensation    the    costs    of    an    action 
brought  by  an  applicant  under  the  employ- 
ers'   liability   act    in    which    she   suffered    a 
nonsuit    lies    to    the    court    of    appeal    and 
not    to    the   divisional    court.      Williams   v. 
Army  &  Navy  Auxiliary  Co-op.  Soc.  (1907) 
23  Times  L.  R.   (Eng.)  408. 


84 


WORKMEN'S  COMPENSATION. 


The  word  "proceedings"  is  used  in  a 
"sense  different  from  that  which  would 
describe  legal  procedure  ordinarily." 37 
It  signifies  a  claim  for  compensation,  and 
a  refusal  of  such  compensation.38  A 
notice  of  injury,  not  followed  by  a  claim 
for  compensation,  is  not  a  "proceed- 
ing." 39  And  a  request  for  arbitration 
made  by  an  injured  workman  is  not  a 
notice  of  claim  of  which  the  employer 
must  give  notice  to  the  insurance  com- 
pany, under  his  contract  with  the  latter 
whereby  it  was  provided  that  the  in- 
sured should  forward  to  the  insurance 
company  every  written  notice  or  informa- 
tion as  to  any  verbal  notice  of  claim 
arising  through  any  accident.40  The 
provisions  of  the  public  authorities  pro- 
tection act,  1893,  relative  to  the  time 
within  which  actions  must  be  commenced, 
have  no  application  to  proceedings 
brought  under  the  compensation  act.41 

If  the  workman  has  failed,  without 
reasonable  excuse  and  to  the  prejudice 
of  the  employer,  to  give  notice  as  soon 
as  practicable  after  the  injury,  such 
failure  will  bar  his  dependents  from  ob- 
taining compensation  for  such  injury 
after  the  workman's  death.42  So,  where 
the  father  of  a  deceased  workman,  hav- 
ing failed  to  recover  damages  in  an  ac- 
tion against  the  employer  and  requested 


compensation  to  be  assessed  under  the 
act,  had  subsequently  died,  the  mother 
and  sisters  of  the  deceased  workman  can- 
not, after  six  months  have  expired,  be 
sisted  so  as  to  secure  compensation  as 
dependents.43  But  the  dependents  of  a 
deceased  workman  may  take  advantage 
of  the  notice  of  injury  and  claim  for 
compensation  made  by  the  deceased  dur- 
ing his  lifetime,  and.it  is  not  necessary 
that  such  dependents  file  a  new  notice 
and  claim  after  his  death.44 

c.  Form  and  contents  of  notice. 

It  has  been  held  in  several  cases  in  the 
court  of  appeal  that  the  notice  of  the  in- 
jury must  be  in  writing.45  But  in  a  case 
in  the  House  of  Lords  compensation  was 
awarded  although  it  appeared  that  only 
a  verbal  notice  was  given;  but  the  point 
actually  decided  was  that  the  claim  for 
compensation  need  not  be  for  a  stated 
amount.46  In  a  later  case  in  the  House 
of  Lords,  however,  the  language  used  by 
one  of  the  Lords  delivering  judgment 
merely  indicates  that  in  his  opinion  the 
notice  should  be  in  writing;  but  the 
point  was  not  decided.47 

The  applicant  is  required  to  describe 
the  nature  of  the  injury  but  not  the 
effects  thereof.48 


37  Lord  Halsbury  &  Powell  v.  Main  Col- 
liery Co.  [1900]   A.  C.   (Eng.)   366,  69  L.  J. 
Q.   B.  N.   S.   758,  49  Week.  Rep.   49,  83   L. 
T.  N.   S.  85,  16  Times  L.  R.  466,  65  J.  P. 
100. 

38  Powell  v.   Main   Colliery   Co.    [1900]   2 
Q.  B.   (Eng.)    145,  69  L.  J.  Q.  B.  N.  S.  542, 
64  J.  P.  323,  48  Week.  Rep.  534,  82  L.  T. 
N.  S.  340,  16  Times  L.  R.  282,  reversed  by 
the    House    of    Lords    on    other    points    in 
[1900]    A.   C.    (Eng.)    366. 

39  Perry    v.    Clements    (1901)     17    Times 
L.  R.    (Eng.)    525,  49   Week.   Rep.   669. 

40  Wilkinson   v.  Car  &  General  Ins.  Corp. 
(1914)    110  L.  T.  N.  S.   (Eng.)   468,  [1914] 
W.  N.  31,  58  Sol.  Jo.  233. 

«  Fry  v.  Cheltenham  Corp.  (1911)  81  L. 
J.  K.  B.  N.  S.  (Eng.)  41,  105  L.  T.  N.  S. 
495,  28  Times  L.  R.  16,  76  J.  P.  89,  56 
Sol.  Jo.  33,  [1911]  W.  N.  199,  [1912]  W. 
C.  Rep.  105,  5  B.  W.  C.  C.  162,  10  L.  G. 
R.  1. 

42  Grime  v.  Fletcher  [1915]  1  K.  B.  (Eng.) 
734,  31  Times  L.  R.  158,  50  L.  J.  55,  84  L. 
J.  K.  B.  N.  S.  847,  8  B.  W.  C.  C.  69,  [1915] 
W.  N.  43,  59  Sol.  Jo.  233. 

43McGinty  v.  Kyle  [1911]  S.  C.  (Scot.) 
589.  The  Lord  President  observed:  "I  can- 
not see  that  other  people  who  have  allowed 
the  statutory  time  to  pass  can  take  to 
themselves  the  benefits  of  proceedings  which 
during  the  six  months  allowed  to  them 
might  never  have  been  turned  into  a  claim 
for  compensation  at  all,  and  which  only 
become  proceedings  for  compensation  be- 
L.R.A.1916A. 


cause  another  person  over  whose  volition 
they  have  no  control  has  chosen  to  exercise 
a  personal  privilege." 

44Moffat  v.  Crow's  Nest  Pass  Coal  Co. 
(1913)  7  B.  W.  C.  C.  (B.  C.)  1040. 

45  Hughes     v.     Coed     Talon     Colliery     Co. 
[1909]  1  K.  B.  (Eng.)  957,  78  L.  J.  K.  B.  N. 
S.   539,   100   L.   T.   N.   S.   555;    Griffiths   v. 
Atkinson  (1912)  106  L.  T.  N.  S.  (Eng.)  852, 
[1912]   W.  C.  Rep.  277,  5  B.  W.  C.  C.  345; 
Brady   v.   Canadian    P.   R.  Co.    (1913)    6   B. 
W.  C.  C.    (Eng.)    680. 

"I  may  say  at  once  that  prima  facie  the 
act  says  that  notice  in  writing  shall  be 
given  of  the  accident."  Lord  Cozens-Hardy, 
M.  R.,  in  Fox  v.  Barrow  Hematite  Steel  Co. 
(1915)  84  L.  J.  K.  B.  N.  8.  (Eng.)  1327. 

46  Thompson  v.  Goold  [1910]  A.  C.  (Eng.) 
409,   79    L.   J.   K.   B.   N.   S.   905,   103   L.   T. 
N.   S.   81,  26   Times   L.   R.  526,  54   Sol.  Jo. 
599,  3  B.  W.  C.  C.  392. 

47  In  Hayward   v.   Westleigh  Colliery  Co. 
[1915]    A.    C.    (Eng.)    540,   84    L.   J.   K.   B. 
N.   S.  61,   112   L.   T.   N.   S.   1001,  31   Times 
L.  R.  215,  8  B.  W.  C.  C.  278,  [1915]   W.  N. 
67,  59  Sol.  Jo.  269,  reversing  7  B.  W.  C.  C. 
53,    [1914]     W.    C.    &    Ins.    Rep.    21,    Earl 
Lorebum  said  that  the  notice  was  not  given 
"in  the  form  required  by  the  statute,  that 
is  to  say,  a  written  notice."     Compensation 
was    nevertheless    allowed    because    it    was 
held  that  the  employer  had  not  been  preju- 
diced by  lack  of  prompt  notice. 

48  The   applicant   who   properly   describes 
the    nature    of    the    accident    does    not    fail 


CLAIM  FOR  COMPENSATION. 


85 


d.   To   u-hom  notice   may   be  given. 

It  is  not  necessary  that  notice  be  given 
to.  the  employer  personally.49  But  an 
employee  who  merely  measures  up  the 
work  given  out  and  calculates  the  time 
allowed  is  not  a  proper  person  to  whom 
notice  could  be  given  of  the  accident,80 
nor  is  the  foreman  of  a  department  of  a 
large  factory.61 

e.  Claim    for   compensation. 

This  phrase  means,  not  the  initiation 
of  proceedings  before  the  tribunal  by 
which  the  compensation  is  to  be  assessed, 
but  a  notice  of  a  claim  for  compensation, 
sent  to  the  workman's  employer.62  The 
claim  need  not  be  for  a  definite  sum,53 


nor  in  writing.64  But  the  fact  that  the 
wife  of  an  injured  workman  asked  the 
employer  if  he  would  compensate  her 
and  her  children  is  not  sufficient  as  a 
claim  for  compensation.66  A  request  for 
arbitration  is  a  sufficient  "claim  for  com- 
pensation." 66  And  a  letter  containing 
a  notice  of  the  accident'  and  a  descrip- 
tion of  the  injuries,  and  a  request  to 
know  what  compensation  would  be  al- 
lowed, and  a  further  request  for  an 
immediate  answer,  is  a  claim  for  com- 
pensation.67 So,  a  document  wherein  a 
workman  made  a  claim  for  compensa- 
tion for  an  injury  received  upon  a  des- 
ignated day,  "as  per  claim  in  the  em- 
ployers' liability  act"  is  a  valid  claim.68 
And  a  statement  in  an  answer  to  an  ap- 
plication for  compensation  that,  with- 


merely  because  the  injury  is  not  accu- 
rately described  from  a  medical  point  of 
view.  Sidney  v.  Collins  (1910)  3  B.  W. 
C.  C.  (Eng.)  433. 

49  Where  the  overman   of  a   level   writes 
down    the    facts    of    the    injury    to    a    boy 
in  a  mine  in  the  presence  of  the  boy  and 
his   father,   it   is  a  sufficient   notice.     Stev- 
ens  v.   Insoles    [1912]    1   K.   B.    (Eng.)    36, 
[1911]    W.   N.   205,   81   L.   J.   K.   B.   N.    S. 
47,   105  L.   T.   N.   S.  617. 

Notice  of  the  accident  to  the  cashier  of 
the  employer,  whose  duty  it  was  to  find  a 
substitute  for  the  workman  and  to  deter- 
mine the  amount  he  should  be  paid,  is  no- 
tice to  the  company.  Butt  v.  Gellyceidrim 
Colliery  Co.  (1909)  3  B.  W.  C.  C.  (Eng.) 
44. 

50  Jackson  v.  Vickers   [1912]   W.  C.  Rep. 
(Eng.)  274,  5  B.  W.  C.  C.  432. 

51  Pimm  v.   Clement   Talbot    [1914]    7   B. 
W.   C.   C.    (Eng.)    565;    Plumley    v.    Ewart 
&    Son    (1915)    8   B.   W.  C.   C.    (Eng.)    464. 

52  Powell  v.  Main  Colliery  Co.   [1900]   A. 
C.  (Eng.)  366,  69  L.  J.  Q.  B.  N.  S.  758,  4!) 
Week.  Rep.  49,  83  L.  T.  N.  S.  85,  16  Times 
L.   R.  466,  65  J.  P.   100,  holding  that   the 
proceedings  were  in  time  where  a  workman 
sent  to  his  employers,  within   six  months, 
a  notice  of  the  accident,  and  also  a  notice 
stating  that  he  claimed  a  certain  amount  as 
compensation  for  the  injury,  and  then,  more 
than  six  months  after  the  accident,  filed  a 
request  for  arbitration  in  the  county  court. 
The  decision  of  the  court  of  appeal  ([1900] 
2   Q.   B.    (Eng.)    145,   69   L.   J.   Q.   B.  N.   S. 
542,  64  J.   P.  323,  48  Week.  Rep.   534,   82 
L.  T.  N.  S.  340,  16  Times  L.  R.  282)   was 
reversed. 

A  letter  was  written  by  the  agent  of  a 
deceased  servant's  father  to  the  employer 
to  the  following  effect:  "I  am  instructed 
by  his  father  to  intimate  that  he  holds 
you  liable  for  compensation.  This  notice 
is  given  in  terms  of  the  statute."  Held, 
that  the  letter  was  not  a  claim  for  com- 
pensation, but  merely  notice  of  an  inten- 
tion to  make  a  claim.  Bennett  v.  Wordie 
(1899)  1  Sc.  Sess.  Cas.  5th  series,  855,  36 
Scot.  L.  R.  643,  7  Scot.  L.  T.  10. 
L.R.A.1916A. 


53  Thompson  v.  Goold  [1910]  A.  C.  (Eng.) 
409,  79  L.  J.  K.  B.  N.  S.  905,  103  L.  T.  N. 
S.  81,  26  Times  L.  R.  526,  54  Sol.  Jo.  599, 
3   B.  W.   C.  C.   392,   overruling  former  au- 
thorities   and    dicta    to    the    contrary.      To 
the  same  effect:    Fraser  v.  Great  North  of 
Scotland  R.  Co.    (1901)    3  F.  908,  38  Scot. 
L.  R.  653,  9  Scot.  L.  T.  96;   Allen  v.  Hoey 
(1914)  49  Ir.  Law  Times,  39,  8  B.  W.  C.  C. 
424. 

Among  the  cases  that  are  to  be  con- 
sidered as  overruled  are  the  following: 
Marno  v.  Workman  (1899)  33  Ir.  Law 
Times,  183,  as  cited  in  Allen  v.  Hoey  (Ir.) 
supra;  Kilpatrick  v.  Wemyss  Coal  Co. 
[1906-07]  S.  C.  (Scot.)  320;  Maver  v.  Park 
(1905)  8  Sc.  Sess.  Cas.  5th  series  (Scot.) 
250;  Bennett  v.  Wordie  (1899)  1  F.  855,  36 
Scot.  L.  R.  643,  7  Scot.  L.  T.  10;  Powell  v. 
Main  Colliery  Co.  [1900]  A.  C.  (Eng.)  366, 
69  L.  J.  Q.  B.  N.  S.  758,  49  Week.  Rep.  49, 
83  L.  T.  N.  S.  85,  16  Times  L.  R.  466,  65 
J.  P.  100  (dicta). 

54  Lowe  v.  Myers   [1906]   2  K.  B.   (Eng.) 
265,  75  L.  J.  K.  B.  N.  S.  651,  95  L.  T.  N.  S. 
35,  22  Times  L.  R.  614.     See  also  Thomp- 
son v.  Goold    (Eng.)    supra. 

A  formal  claim  is  unnecessary.  Devons 
v.  Anderson  [1911]  S.  C.  181,  48  Scot.  L. 
R.  187,  4  B.  W.  C.  C.  354. 

55  Johnson   v.  Wootton    (1911)    27   Times 
L.  R.  (Eng.)  487,  4  B.  W.  C.  C.  258. 

56  Wright  v.  Bagnall  [1900]  2  Q.  B.  (Eng.) 
240,  82  L.  T.  N.  S.  346,  69  L.  J.  Q.  B.  N.  S. 
551,  64  J.   P.  420,  48  Week.   Rep.   533,   16 
Times  L.  R.  327;  Fraser  v.  Great  North  of 
Scotland  R.  Co.  (1901)  3  Sc.  Sess.  Cas.  5tb 
series,  908,  38  Scot.  L.  R.  653,  9   Scot.  L. 
T.  96. 

But  a  request  on  the  part  of  an  agent 
for  the  insurance  company  which  has  in- 
sured the  employer,  to  accept  compensation, 
does  not  do  away  with  the  necessity  of 
filing  a  claim.  Devons  v.  Anderson  [1911] 
S.  C.  181,  48  Scot.  L.  R.  187,  4  B.  W.  C.  C. 
354. 

57Trenear  v.  Wells  (1900;  C.  C.)  3  W. 
C.  C.  (Eng.)  58. 

58Linklater  v.  Webster  (1904)  6  W.  C. 
C.  (Eng.)  50. 


86 


WORKMEN'S  COMPENSATION. 


in  a  few  weeks  of  the  accident,  the 
respondent  had  paid  the  applicant  a  cer- 
tain sum,  which  had  been  accepted  in 
satisfaction  of  all  claim,  is  evidence 
tending  to  show  that  the  applicant  had 
made  some  claim  for  compensation  with- 
in the  statutory  six  months.59 

f.   Time    within    which    claim   must    be 
made. 

The  six  months  are  to  be  reckoned 
from  day  to  day  without  reference  to 
the  particular  moment  of  the  day  at 
which  the  injury  occurs  or  the  notice  is 
given.60  A  person  partially  dependent 
may  await  an  award  to  one  wholly  de- 
pendent before  filing  his  claim  for  a 
share  in  the  award,  although  the  time  for 


filing  a  claim  against  the  employer  has 
expired.61 

g.  Employer     "prejudiced    in    his    de- 
fense." 

A  trial  judge  is  in  error  if  he  dismiss- 
es the  proceeding,  when  he  has  deter- 
mined that  there  was  no  good  excuse  for 
the  want  of  notice.  He  is  still  bound  to 
inquire  whether  the  defendant  was,  as  a 
matter  of  fact,  prejudiced.62 

Where  the  character  of  the  injury  is 
such  that  immediate  care  on  the  part  of 
the  employer  will  reduce  the  amount  of 
compensation  for  which  he  is  liable,  he 
will  be  held  to  have  been  prejudiced  by 
a  failure  on  the  part  of  the  applicant  to 
give  immediate  notice.63  So,  too,  the 


59  Lowe  v.  Myers   [1906]   2  K.  B.   (Eng.) 
265,  75  L.  J.  K.  B.  N.  S.  651,  95  L.  T.  N.  S. 
.35,  22  Times  L.  R.  614. 

60  Where  the  accident  occurred  at   11:30 
A.  M.  on  November  24th,  1908,  a  claim  for 
compensation  lodged  at  5:30  P.  M.  on  May 
24th,   1909,  is  within   six   months  from  the 
occurrence     of     the     accident.       Peggie     v. 
Wemyss   Coal   Co.    [1909-10]    S.   C.   93,   47 
Scot.  L.  R.  149   (contention  was  that  claim 
was  not  "timeous,"  because  it  was  not  put 
in  until  a  later  hour  of  the  day  on  which 
the  six  months  expired). 

61  Smith   v.   Pearson    (1909;    C.   C.)    2   B. 
W.  C.  C.   (Eng.)   468. 

62  McLean  v.  Carse  (1899)  1  Sc.  Sess.  Cas. 
5th  series,  878,  36  Scot.  L.  R.  678,  7   Scot. 
L.  T.  26. 

63  Where    a    lad    working    in    a    colliery 
scratched   his   hand,  but   paid   no  attention 
to    it,    and    worked    two    days    afterward, 
when    it    became    worse,    and    his    mother 
poulticed   it,   and    he    worked   another    day, 
after  which  he  saw  the  company's  physician 
and  was  ordered  by  him  to  stop  work,  and 
written  notice  was  not  given  to  the  com- 
pany for  two  weeks  thereafter,  the  county 
court   judge   may   find   that   the   employers 
were   prejudiced   because   of   the   failure   to 
give  the  notice,  where  the  doctor  gave  evi- 
dence that  working  after  the  injury  did  the 
hand  considerable  harm.    Snelling  v.  Norton 
Hill  Colliery  Co.   [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  497,  109  L.  T.  N.  S.  81,  6  B.  W.  C. 
C.   506.     Cozens-Hardy,  M.  R.,  stated  that 
the  lad  was  not  to  be  blamed  for  not  pay- 
ing attention  at  first  to  a  slight  abrasion 
on    the    hand,    but    that    he    neglected    for 
nearly   two  weeks  to  give   notice   after  he 
had    been    informed    by    a    doctor    that    his 
hand  was  in  a  serious  condition. 

The  employer  is  prejudiced  by  failure  of 
a  workman  to  give  prompt  notice  of  an 
injury  to  his  finger,  where  notice  was  not 
given  for  five  days  after  the  accident,  at 
which  time  the  finger  was  in  such  a  septic 
condition  that  amputation  was  necessary, 
and  where  evidence  tended  to  show  that, 
had  the  wound  been  attended  to  promptly, 
and  dressed  with  antiseptic  dressing  in  due 
L.R.A.1916A. 


time,  subsequent  trouble  with  it  would  not 
have  occurred.  Wassell  v.  Russell  (1915) 
112  L.  T.  N.  S.  (Eng.)  902. 

The  county  court  judge  is  not  justified 
in  finding  that  a  notice  had  been  given  as 
soon  as  possible  after  an  accident,  and  that 
the  employer  had  not  been  prejudiced  by 
the  want  of  notice,  where  a  barber's  assist- 
ant claimed  to  have  suffered  an  accident 
on  January  17th,  at  which  time  his  hand 
began  to  smart  from  dermatitis,  and  no 
notice  was  given  until  April,  when  two 
letters  were  written  by  the  applicant's 
solicitor  to  the  employer,  claiming  dam- 
ages for  injury  caused  by  the  use  of  a  dan- 
gerous dry  shampoo.  Petschett  v.  Preis 
(1915)  31  Times  L.  R.  (Eng.)  156,  [1915] 
W.  C.  &  Ins.  Rep.  11,  8  B.  W.  C.  C.  44. 

A  delay  of  over  five  months  in  giving 
notice  of  an  accident  will  bar  a  claim  for 
compensation,  where  the  applicant,  at  the 
time  of  the  alleged  accident,  was  using  a 
heavy  beadle  for  driving  piles  into  the 
ground,  and  had  to  drop  it,  as  he  felt  that 
he  had  injured  himself,  the  court  holding 
that  since  there  was  no  apparent  injury, 
it  was  of  the  utmost  importance  that  the 
employers  should  know  of  the  alleged  ac- 
cident immediately.  Ing  v.  Higgs  (1914) 
110  L.  T.  N.  S.  (Eng.)  442,  [1914]  W.  C. 
&  Ins.  Rep.  86,  7  B.  W.  C.  C.  65. 

It  is  error  for  the  county  court  judge 
to  find  that  the  employer  was  not  preju- 
diced by  failure  to  give  notice  as  soon  as 
practical  after  the  accident,  where  the 
evidence  showed  that  a  charwoman  fell 
upon  the  employer's  staircase  and  injured 
her  knee  somewhat,  and  subsequently,  be- 
cause of  the  injury  to  her  knee,  fell  upon 
her  own  staircase  and  received  a  serious 
injury,  and  no  notice  was  given  of  the 
accident  for  three  weeks  after  it  occurred. 
Hodgson  v.  Robins  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  65,  [1914]  W.  N.  47,  7  B.  W. 
C.  C.  232. 

The  county  court  judge  may  find  that 
the  employers  were  prejudiced  by  the  fail- 
ure of  a  workman  to  give  notice  promptly 
where  he  injured  his  thumb  on  February 
19th,  and  treated  the  accident  as  trivial, 


EMPLOYER  PREJUDICED. 


87 


employer  will  be  considered  prejudiced 
where,  because  of  the  lapse  of  time,  it 
is  difficult  to  tell  whether  the  claimant 
is  suffering  from  the  injury  or  from  some 
other  cause.64  The  county  court  judge 
is  not  justified  in  finding  that  the  employ- 
er was  not  prejudiced  by  the  failure  of 
the  workman  to  give  notice  of  his  in- 
jury until  two  months  after,  where  the 
job  was  finished  on  the  day  of  the  ac- 
cident, and  the  men  were  all  paid  off.68 
But  the  county  court  judge  may  find  that 
the  employers  were  not  prejudiced  by 
failure  to  give  notice  of  the  accident, 
where  there  was  no  evidence  that,  if  the 
notice  had  been  given  immediately  after 
the  accident,  they  would  have  been  in 
any  better  position  than  they  actually 
were  at  the  time  when  the  notice  was 
given.66 


The  fact  that  the  employer  knew  of  the 
injury,  and  was  kept  informed  as  to  the 
workman's  condition,  tends  to  show  that 
he  was  not  prejudiced  by  a  failure  to 
give  the  notice.67  So,  too,  it  may  be 
said  that  the  employer  was  not  preju- 
diced where  the  workman  consulted  the 
employer's  doctor  a  day  or  two  after  he 
met  with  the  accident,  and  the  doctor 
learned  the  whole  history  of  the  occur- 
rence, prescribed  the  proper  medical 
treatment,  and  recommended  eye  spec- 
ialists, who  were  consulted.68  The  mere 
length  of  time  before  the  notice  was 
given  after  the  accident  is  usually  im- 
material on  the  question  of  prejudice 
to  the  employer.  But,  in  a  few  cases, 
emphasis  has  been  laid  upon  the  lapse 
of  time.69 

The   statute   provides   that   the   want 


and  accidentally  hit  the  thumb  again  and 
reopened  the  wound  on  March  10th,  and 
the  thumb  grew  gradually  worse  until,  on 
March  19th,  he  consulted  the  doctor,  who 
found  that  he  was  suffering  from  blood 
poisoning,  and  grew  continually  worse  until 
he  died  on  March  27th  of  blood  poisoning, 
and  no  notice  of  the  accident,  was  given  to 
the  employers  until  after  his  death.  Taylor 
v.  Nicholson  [1915]  W.  C.  &  Ins.  Rep. 
(Eng.)  42,  8  B.  W.  C.  C.  114. 

64  The  county  court  judge  may  find  that 
failure  to  give  notice  for  four  months  is 
prejudicial  to  the  employer  where  the  lat- 
ter's  doctor  has  testified  that  it  would 
have  been  easier  to  judge  whether  the  em- 
ployee's condition  was  due  to  the  injury 
•or  not  if  he  had  seen  him  earlier.  Bramley 
v.  Evans  (1909)  3  B.  W.  C.  C.  (Eng.)  34. 

The  employer  may  be  found  to  be  preju- 
diced by  failure  to  give  notice  as  soon  as 
practicable  after  the  accident  where  it  ap- 
peared that  the  notice  was  not  given  until 
four  weeks  after  the  accident,  and  that 
the  employer's  witnesses  were  unable  at 
that  time  to  remember  the  particular  work 
that  the  injured  workman  was  doing  at 
the  time  of  the  accident.  Ungar  v.  Howcll 
£1914]  W.  C.  &  Ins.  Rep.  (Eng.)  58,  7  B. 
W.  C.  C.  36. 

It  is  error  for  the  county  court  judge 
to  hold  that  the  employer  was  not  preju- 
diced by  failure  to  receive  notice  of  an 
accident  for  two  weeks  after  it  occurred, 
where  the  only  evidence  of  an  accident  was 
that  given  by  a  fellow  workman  of  the 
employee,  who  testified  that  he  had  helped 
extract  a  splinter  from  the  left  hand  of 
the  deceased,  and  the  doctor  who  attended 
the  workman  testified  that  the  workman, 
who  died  about  ten  days  after  the  injury, 
was  suffering  from  septic  poisoning  in  the 
right  arm.  Ford  v.  Gaiety  Theatre  [1914] 
W.  C.  &  Ins.  Rep.  (Eng.)  53,  7  B.  W.  C.  C. 
197. 

It  cannot  be  said  that  the  master  was 
not  prejudiced  by  not  having  notice  of  the 
accident  within  a  reasonable  time  after  it 
occurred,  where  the  medical  evidence  showed 
that  the  abscess  from  which  the  applicant 
L.R.A.1916A. 


was  suffering  might  have  come  from  other 
causes,  although  it  most  probably  came 
from  this  blow.  Egerton  v.  Moore  [1912] 
2  K.  B.  (Eng.)  308,  81  L.  J.  K.  B.  N.  S.  696, 
106  L.  T.  N.  S.  663,  [1912]  W.  C.  Rep.  250, 
[1912]  W.  N.  89,  5  B.  W.  C.  C.  284. 

65Burrell  v.  Holloway  Bros.  (1911)  4  B. 
W.  C.  C.  (Eng.)  239. 

66Haward  v.  Rowsell  [1914]  W.  C.  & 
Ins.  Rep.  (Eng.)  314,  7  B.  W.  C.  C.  552. 

It  may  be  found  that  an  employer  was 
not  prejudiced  by  reason  of  the  failure  of 
an  injured  employee  to  give  him  written 
notice  of  the  accident,  where  the  employee 
had  received  full  medical  advice  and  attend- 
ance from  several  doctors  immediately  fol- 
lowing the  injury,  and  upon  the  advice  of 
two  of  the  doctors  underwent  an  operation. 
Barrie  v.  Diamond  Coal  Co.  (1914;  Alberta) 
7  B.  W.  C.  C.  1061. 

Where  a  boy  employed  as  a  painter  left 
off  work  because  of  illness,  and  about  a 
month  after  consulted  his  doctor,  who  sent 
him  to  bed,  and  he  was  in  bed  for  five 
months,  and,  as  soon  as  he  could  get  out, 
went  to  his  employers  and  told  them  of  his 
illness,  and  that  the  doctor  thought  it  was 
lead  poisoning,  and  subsequently  became 
worse,  and  about  two  months  afterwards  a 
formal  complaint  for  compensation  was 
made,  and  the  certifying  surgeon  stated 
that  the  boy  was  suffering  from  lead 
poisoning,  and  that  the  disablement  com- 
menced at  about  the  time  he  left  off 
work,  compensation  was  allowed  him  over 
the  objection  of  the  employers  that  notice 
was  not  given  in  time,  and  that  they  had 
been  prejudiced.  Sanderson  v.  Harkinson 
(1913)  6  B.  W.  C.  C.  (Eng.)  648. 

67  The  employers  cannot  be  said  to  have 
been    prejudiced    for    failure    of    statutory 
notice  where  they  had  full  knowledge  of  the 
accident  as  soon  as  practicable  after  it  hap- 
pened, and  repeatedly  had  reports  from  the 
workman,  which  they  sent  on  to  their  in- 
surance company.     Stinton  v.  Brandon  Gas 
Co.  [1912]  W.  C.  Rep.  (Eng.)  132,  5  B.  W. 
C.  C.  426. 

68  Bruno  v.  International  Coal  &  Coke  Co. 
(1913;  Alberta)  7  B.  W.  C.  C.  1033. 


88 


WORKMEN'S  COMPENSATION. 


of  a  notice  shall  not  be  a  bar  to 
the  maintenance  of  proceedings  if  it  is 
found  that  the  employer  is  not  "preju- 
diced in  his  defense"  by  such  want  of 
notice;  consequently  the  court  of  appeal 
has  held  that  the  fact  that  the  employer 
was  not  able  to  give  the  insurance  com- 
pany notice  of  the  accident,  thereby  los- 
ing his  right  of  indemnity  against  such 
insurance  company,  is  not  relevant  upon 
the  question  of  prejudice,  since  such 
failure  to  give  notice  to  the  insurance 
company  does  not  prejudice  the  employ- 
er in  his  defense  to  the  action  by  the 
employee.70  A  contrary  decision  by  the 
county  court  judge  must  be  considered  as 


69  A  failure  to  give  notice  for  four  months 
is  unreasonable,  and  may  be  found  preju- 
dicial to  the  employer.     Stronge  v.  Hazlett 
(1910)  44  Ir.  Law  Times,  10,  3  B.  W.  C.  C. 
581. 

The  employers  will  presumably  be  prej- 
udiced by  a  failure  to  give  notice  of  an  acci- 
dent for" upwards  of  five  months.  Shannon 
v.  Bainbridge  Weaving  Co.  (1911)  45  Ir. 
Law  Times,  74. 

A  delay  of  four  months  in  giving  notice 
of  injury  which  results  in  hernia  is  preju- 
dicial to  the  employers.  Jackson  v.  Vickers 
[1912]  W.  C.  Rep.  (Eng.)  274,  5  B.  W.  C.  C. 
432. 

70  Butt  v.  Gellyceidrim  Colliery  Co.  (1909) 
3  B.  W.  C.  C.  (Eng.)  44. 

71  A  delay  in  giving  notice  of  a  claim  to 
the  respondent,  whereby  he  loses  his  right 
to  indemnity  against  an  insurance  compa- 
ny, is  prejudicial  to  him.    Barker  v.  Holmes 
(1904;   C.  C.)    117  L.  T.  Jo.    (Eng.)    158,  6 
W.  C.  C.  52. 

72  Shearer  v.  Miller  (1899)  2  Sc.  Sess.  Cas. 
5th  series,  114,  37  Scot.  L.  R.  80,  7  Scot.  L. 
T.   231;    Hancock   v.   British   Westinghouse 
Electric  Co.    (1910)    3  B.  W.   C.   C.    (Eng.) 
210;    Hughes    v.    Coed    Talon    Colliery    Co. 
[1909]   1  K.  B.   (Eng.)   957,  78  L.  J.  K.  B. 
N.  S.  539,  100  L.  T.  N.  S.  555;  Dalgiesh  v. 
Gartside   [1914]   W.  C.  &  Ins.  Rep.    (Eng.) 
319,  7  B.  W.  C.  C.  535;  Hodgson  v.  Robins 
[1914]  W.  C.  &  Ins.  Rep.  (Eng.)  65,  [1914] 
W.  N.  47,  7  B.  W.  C.  C.  232;  Hunt  v.  High- 
ley  Min.  Co.  [1914]  W.  C.  &  Ins.  Rep.  (Eng.) 
402,  7  B.  W.  C.  C.  716;   Murphy  v.  Shire- 
brook   Colliery    [1913]    W.   C.   &   Ins.   Rep. 
(Eng.)    184,   6  B.   W.  C.   C.  237;    Pimm  v. 
Clement  Talbot    [1914]   W.  C.  &  Ins.  Rep. 
(Eng.)    350,   7   B.  W.   C.   C.   565;    Tibbs   v. 
Watts    (1909)    2   B.  W.   C.  C.    (Eng.)    164; 
Eydmann     v.     Premier     Accumulator     Co. 
[1915]   W.  C.  &  Ins.  Rep.    (Eng.)    82,  8  B. 
W.  C.  C.  121. 

The  applicant  must  prove  that  he  gave 
notice  of  the  claim  within  six  months  of 
the  occurrence  of  the  accident,  or  that  his 
failure  to  do  so  was  occasioned  by  mistake, 
absence  from  the  United  Kingdom,  or  other 
reasonable  cause.  Roberts  v.  Crystal  Palace 
Foot  Ball  Club  (1909)  3  B.  W.  C.  C.  (Eng.) 
51. 

Where  no  notice  of  the  accident  was 
L.R.A.1916A. 


overruled,  although  no  mention  is  made 
of  this  case  in  the  court  of  appeal.71 

The  onus  lies  on  the  workman  to  show 
that  the  employer  has  not  been  preju- 
diced by  the  former's  failure  to  give  due 
notice  of  the  accident.72  If  the  arbitra- 
tor refuses  to  find  that  the  employer  was 
not  prejudiced,  and  there  is  evidence  to 
support  his  conclusions,  the  court  of  ap- 
peal will  not  interfere.73  It  is  not  error 
for  the  county  court  judge  to  omit  the 
words  "in  his  defense"  in  a  finding  that 
the  workman  had  not  discharged  the 
onus  of  proving  that  the  employers  "had 
not  been  prejudiced."74 


given  until  nearly  a  month  thereafter,  the 
applicant  must  show  affirmative  proof  that 
the  employer  was  not  prejudiced  by  failure 
to  give  prompt  notice.  Lacey  v.  Mowlem 
[1914]  W.  C.  &  Ins.  Rep.  (Eng.)  63,  7  B.  W. 
C.  C.  135. 

Where  the  workman  had  failed  to  give 
notice  of  the  injury  within  a  reasonable 
time,  affirmative  evidence  must  be  intro- 
duced to  show  that  the  employer  was  not 
prejudiced  because  of  such  failure.  Grime 
v.  Fletcher  [1915]  1  K.  B.  (Eng.)  734,  31 
Times  L.  R.  158,  50  L.  J.  55,  84  L.  J.  K.  B. 
N.  S.  847,  [1915]  W.  N.  43,  59  Sol.  Jo.  233, 
8  B.  W.  C.  C.  69. 

In  Hayward  v.  Westleigh  Colliery  Co. 
[1915]  A.  C.  (Eng.)  540,  84  L.  J.  K.  B.  N.  S. 
661,  112  L.  T.  N.  S.  1001,  31  Times  L.  R. 
215,  [1915]  W.  N.  67,  59  Sol.  Jo.  269,  8 

B.  W.  C.  C.  278,  reversing,  [1914]  W.  C.  & 
Ins.  Rep.  21,  7  B.  W.  C.  C.  53,  it  was  held 
that  the  arbitrator  might  hold  that  the  em- 
ployers   were    not    prejudiced    where    there 
was  no  inherent  probability  that  could  be 
seen   that   the   employers   would    be   preju- 
diced by  the  absence  of  a  notice  for  a  few 
days,  and  they  gave  no  evidence  that  they 
had  been  prejudiced. 

A  workman  has  the  burden  of  showing 
that  the  employer  has  not  been  prejudiced, 
or,  if  the  employer  has  been  prejudiced,  the 
workman  must  prove  that  the  want  of  no- 
tice was  occasioned  by  a  mistake  or  other 
reasonable  cause.  Egerton  v.  Moore  [1912] 
2  K.  B.  (Eng.)  308,  81  L.  J  K.  B.  N.  S.  696, 
106  L.  T.  N.  S.  663,  [1912]  W.  C.  Rep.  250, 
[1912]  W.  N.  89,  5  B.  W.  C.  C.  284. 

The  workman  has  not  discharged  the  bur- 
den of  proving  that  the  employers  were 
not  prejudiced  by  delay  in  giving  notice 
where  he  claimed  to  have  been  ruptured  on 
the  27th  of  the  month,  and  gave  notice  on 
the  30th,  when  there  was  no  reason  given 
for  the  delay,  and  no  evidence  to  show  that 
the  employer  had  not  been  prejudiced. 
Nicholls  v.  Briton  Ferry  U.  D.  C.  [1915]  W. 

C.  &   Ins.   Rep.    (Eng.)    14,   8  B.   W.   C.   C. 
42. 

73  Miller  v.  Richarson  [1915]  3  K.  B. 
(Eng.)  76,  84  L.  J.  K.  B.  N.  S.  1366. 

74Snelling  v.  Norton  Hill  Colliery  Co. 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  497,  109 
L.  T.  N.  S.  81,  6  B.  W.  C.  C.  506. 


EXCUSES  FOR  DELAY  OF  NOTICE  OR  CLAIM. 


89 


h.  Excuses    for    not    giving    notice    or 
making  claim  in  time. 

The  provision  which  requires  the  claim 
for  compensation  to  be  made  within  six 
months  of  the  occurrence  of  the  accident 
causing  the  injury  is  not  necessarily  an 
absolute  bar  to  proceedings  for  the  as- 
sessment of  compensation,  commenced 
after  six  months  by  an  injured  workman ; 
and  the  county  court  judge  or  other  ar- 
bitrator has  jurisdiction  to  inquire 
whether  there  are  any  circumstances  in 


the  case  to  debar  the  employer  from 
raising  that  defense.  Where  the  serious 
character  of  the  injury  is  apparent,  and 
the  workman  has  had  opportunity  to 
give  the  notice,  failure  so  to  do  for  a 
considerable  time  afterwards  will  bar 
compensation.75  But  the  fact  that  the 
consequences  of  the  injuries  were  not 
apparent  at  the  time  has  been  held  to 
be  a  sufficient  excuse  for  not  giving  no- 
tice immediately.76  This  is  particularly 
true  where  a  disease  caused  by  the  acci- 
dent subsequently  supervened,77  or  where 


75  Where  a  workman  met  with  an  acci- 
dent causing  him  to  bite  his  tongue,  which 
accident  he  immediately  reported  verbally 
to  the  foreman  of  the  work,  but  stated  that 
he  was  not  severely  injured,  and  the  acci- 
dent was  also  reported  to  one  of  the  em- 
ployers, who  happened  to  be  present  at  the 
time,  and  four  days  afterwards  the  work- 
man was  attended  by  his  own  doctor,  who 
found  that  he  was  suffering  from  an  open, 
discharging  wound  in  his  tongue,  and  the 
doctor  continued  to  attend  the  workman  for 
some  time,  and  the  difficulty  of  taking  food 
increased,  but  the  workman  continued  to 
work  for  about  six  months,  when,  after  lay- 
ing off  for  a  week,  he  died  of  cancer  of  the 
tongue,  there  is  no  reasonable  cause  for 
failing  to  give  notice  of  the  accident  as  re- 
quired by  §  2  of  the  act.  Potter  v.  Welch 
[1914]  3  K.  B.  (Eng.)  1020,  30  Times  L.  R. 
644,  [1914]  W.  N.  106,  317,  137  L.  T.  Jo. 
290,  83  L.  J.  K.  B.  N.  S.  1852,  7  B.  W.  C.  C. 
738. 

Where  a  workman  fell  from  a  loft  and  in- 
jured his  head,  and  was  off  from  duty  for 
about  two  days  and  a  half,  when  he  re- 
turned, and  thereafter  continued  to  work 
for  upwards  of  six  months,  during  all  of 
which  time  he  complained  of  headaches  as 
result  of  the  fall,  and  after  that  time  he 
became  insane,  he  is  not  entitled  to  com- 
pensation, where  no  notice  was  given  of  the 
accident  until  fully  a  year  after  it  occurred, 
as  his  case  did  not  fall  within  the  proviso 
to  §  2.  Clapp  v.  Carter  (1914)  110  L.  T. 
N.  S.  (Eng.)  491,  58  Sol.  Jo.  232,  [1914] 
W.  C.  &  Ins.  Rep.  82.  7  B.  W.  C.  C.  28. 

A  county  court  judge  may  find  that  no- 
tice was  not  given  as  soon  as  practical 
after  the  accident,  where  it  was  not  given 
until  one  month  after,  although  the  claim- 
ant had  seen  his  employer  twice  in  tho 
meantime.  Leach  v.  Hickson  (1911)  4  B. 
&  W.  C.  C.  (Eng.)  153. 

There  is  no  reasonable  excuse  for  failure 
to  give  notice  of  the  injury  where  the  work- 
man was  injured  by  a  splinter  of  iron  enter- 
ing his  eye,  and  upon  the  day  of  the  injury 
he  consulted  his  own  physician,  and  there- 
after for  upwards  of  two  weeks,  he  suffered 
great  pain,  and  then  consulted  another 
doctor,  and,  sixteen  days  after  the  injury, 
committed  suicide.  Grime  v.  Fletcher 
[1915]  1  K.  B.  (Eng.)  734,  31  Times  L.  R. 
158,  50  L.  J.  55,  84  L.  J.  K.  B.  N.  S.  847, 
[1915]  W.  N.  43,  59  Sol.  Jo.  233,  8  B.  W. 
C.  C.  69. 
L.R.A.1916A. 


It  is  error  for  the  county  court  to  ignore 
the  fact  that  no  written  notice  of  the  acci- 
dent was  given  where  the  workman  had 
injured  his  knee  by  a  fall,  and  no  notice 
of  any  kind  was  given  for  upwards  of  three 
weeks,  and  no  medical  attendance  was  had 
by  the  workman  for  that  period.  Coltmari 
v.  Morrison  (1914)  7  B.  W.  C.  C.  194, 
[1914]  W.  C.  &  Ins.  Rep.  (Eng.)  44. 

It  cannot  be  said  that  notice  was  given 
as  soon  as  practicable  after  an  accident, 
where  the  workman  had  been  injured  by 
a  blow  from  a  chip  off  a  brick,  the  notice 
was  not  given  until  three  weeks  thereafter, 
and  subsequent  to  the  death  of  the  work- 
man. Hunt  v.  Highley  Min.  Co.  (1914)  7 

B.  W.  C.  C.  (Eng.)  716. 

Notice  of  the  accident  is  not  given  as 
soon  as  practicable'  after  the  happening 
thereof,  where  a  workman  cut  his  knuckle 
and  burned  it  on  Wednesday,  and  worked 
the  two  following  days,  and  by  the  morning 
of  Saturday,  the  injured  finger  was  in  such 
a  condition  that  the  workman  could  not 
hold  his  hammer,  and  at  10  o'clock  had 
to  knock  off  work  and  go  home,  and  con- 
sulted a  doctor  upon  Monday,  at  which  time 
the  finger  was  in  such  a  septic  condition 
that  it  had  to  be  amputated.  Wassell  v. 
Russell  (1915)  112  L.  T.  N.  S.  (Eng.)  902, 
[1915]  W.  C.  &  Ins.  Rep.  88,  [1915]  W.  N. 
69,  8  B.  W.  C.  C.  230. 

A  man  who  received  a  serious  cut  upon 
his  thumb,  which,  after  being  properly 
dressed  upon  three  different  occasions,  still 
continued  to  pain  him  severely  for  about 
a  month,  was  not  justified  in  failing  to 
notify  the  employer  of  the  injury  until  over 
a  month  after  the  accident.  Dalgiesh  v. 
Gartside  [1914]  W.  C.  &  Ins.  Rep.  (Eng.) 
319.  7  B.  W.  C.  C.  535. 

78  That  the  consequences  of  a  strain  were 
not  apparent  at  the  time  is  a  sufficient 
excuse  for  not  giving  notice  of  the  injury. 
Tibbs  v.  Watts  (1909)  2  B.  W.  C.  C.  (Eng.) 
164. 

The  workman  may  be  found  justified  in 
not  giving  notice  for  a  period  of  nine 
months,  M  here  the  effect  of  the  injury  was 
not  apparent  during  that  time.  Fry  v. 
Cheltenham  Corp.  [1911]  W.  N.  (Eng.)'l99, 
81  L.  J.  K.  B.  N.  S.  41,  105  L.  T.  N.  S.  495, 
28  Times  L.  R.  16,  56  Sol.  Jo.  33,  5  B.  W. 

C.  C.  162. 

77  That  a  workman  did  not  know  for  six 
months  that  she  had  suffered  a  nervous 
shock  from  a  fire,  which  subsequently 


90 


WORKMEN'S  COMPENSATION. 


the  workman's  doctor  did  not  know  what 
was  the  matter  with  him.78  So,  the  fact 
that  the  injuries  were  slight,  and  the 
workman  did  not  intend  to  ask  compen- 


caused  a  serious  disease,  is  sufficient  reason 
for  failure  to  give  notice  of  the  accident. 
Hoare  v.  Arding  (1911)  5  B.  W.  C.  C.  (Eng.) 
36. 

Where  the  applicant  received  a  blow  on 
the  right  side  of  her  head,  and  there  were 
no  immediate  effects,  but  subsequently 
traumatic  epilepsy  supervened,  and  she 
gave  notice  shortly  after  she  knew  that  the 
epilepsy  was  caused  by  the  blow,  the  county 
court  judge  may  find  that  the  employers 
were  not  prejudiced,  although  it  was  about 
six  months  after  the  injury.  Eaton  v. 
Evans  (1911)  5  B.  W.  C.  C.  (Eng.)  82. 

It  is  a  sufficient  excuse  for  not  giving 
notice  of  an  accident  that  the  workman  did 
not  lose  any  time  from  his  work  for  several 
months,  and  the  disease  which  subsequently 
supervened  was  latent  in  character,  and  the 
workman  did  not  know  that  it  was  the 
result  of  the  accident.  Thompson  v.  North- 
Eastern  Marine  Engineering  Co.  (1914)  110 
L.  T.  N.  S.  (Eng.)  441,  [1914]  W.  N.  22, 
[1914]  W.  C.  &  Ins.  Rep.  13,  7  B.  W.  C.  C. 
49. 

78  It  is  a  sufficient  excuse  for  failure  to 
give  notice  for  several  months,  that  neither 
the   workman   nor   his   doctors   knew   what 
ailed    him.      Eke    v.    Hart-Dyke    [1910]    2 
K.  B.   (Eng.)    677,  80  L.  J.  K.  B.  N.  S.  90, 
103  L.  T.  N.  S.  174,  26  Times  L.  R.  613,  3 
B.  W.  C.  C.  482,  3  N.  C.  C.  A.  230.     Cozens- 
Hardy,  M.  R.,  said:      "Neither  of  the  doc- 
tors was  at  the  time  prepared  to  say  that 
there  had  been  an  accident  within  the  mean-  j 
ing  of  the  act.     The  wife,  of  course,  knew  I 
that  her  husband  was  very  ill,  and  ill  from  i 
a  disease  from  which  he  died,  but   it  was 
not  present  to  any  of  their  minds  that  there 
had  been  an  accident  in  respect  of  which 
notice   should   have   been    given.      I    think, 
therefore,  that  there  was  'reasonable  cause' 
for  not  giving  the  notice,  and  although  the 
absence  of  notice  may  have,  to  some  extent, 
prejudiced  the  employer,  in  my  opinion  it 
does  not  prevent  the  applicant  from  succeed- 
ing if  she  can  prove  that  it  was  an  injury 
by   accident   within    the    meaning    of    §    1, 
subsec.  1." 

It  may  be  held  that  a  delay  in  giving 
notice  for  about  eight  months  is  by  mistake 
where  the  workman  was  told  by  a  doctor 
that  the  pain  which  he  suffered  was  due  to 
muscular  rheumatism,  and  not  to  injury. 
Ellis  v.  Fairfield  Shipbuilding  &  Engineer- 
ing Co.  [1913]  S.  C.  217,  [1913]  W.  C.  & 
Ins.  Rep.  88,  6  B.  W.  C.  C.  308,  50  Scot.  L. 
R.  137,  [1912]  2  Scot.  L.  T.  485. 

79  Where  an  employee  did  not  regard  his 
injury    as    so    serious    as   his    doctor's    ad- 
vice should  have  led  him  to  suppose,   and 
he  did  not  intend  to  make  any  claim  under 
the  act  if  his  recovery  had  been  as  satis- 
factory  as   he   expected,   he   is   not   barred 
from   obtaining  compensation,  although  he 
failed  to  give  notice  for  five  months  after 
his  injuries,  and  the  employers  were  preju- 
L.R.A.1916A. 


sation,  may,  under  all  the  circumstances 
of  the  case,  be  a  sufficient  excuse  for 
not  giving  notice.79  But  notice  must  be 
given  as  soon  as  the  dangerous  character 


diced  by  his  failure  to  give  timely  notice, 
since  the  want  of  notice  was  occasioned  by 
mistake  for  which  there  was  reasonable 
cause.  Rankine  v.  Alloa  Coal  Co.  (1904) 
6  Sc.  Sess.  Cas.  5th  series,  375,  41  Scot.  L. 
R.  306,  11  Scot.  L.  T.  670. 

Where  an  injured  workman  intentionally 
did  not  give  notice  of  his  accident  at  the 
time,  believing  that  his  injuries  would  not 
keep  him  from  work,  but  after  going  to  the 
hospital  realized  that  his  injuries  were 
serious,  and  gave  written  notice  of  the 
accident  to  his  employers  about  three 
months  after  the  accident,  his  delay  in  giv- 
ing notice  is  due  to  mistake  or  other  rea- 
sonable cause  within  the  meaning  of  §  2. 
Brown  v.  Lochgelly  Iron  &  Coal  Co.  [1907] 
S.  C.  (Scot.)  198. 

There  is  reasonable  cause  for  failing  to 
give  a  formal  notice  of  the  injury,  where 
the  claimant  believes  that  his  injuries  are 
not  serious,  and  a  day  after  the  accident, 
and  again  a  month  after,  he  gives  a  verbal 
notice  of  it.  Refuge  Assur.  Co.  v.  Millar 
(1911)  49  Scot.  L.  R.  67. 

The  failure  of  a  collier  to  give  notice 
within  six  months  that  he  was  suffering 
from  nystagmus  is  excusable  where  he  had 
received  medical  advice  that  the  disease 
could  be  cured  by  spending  a  short  time 
above  ground,  and,  there  being  at  that  time 
a  strike  at  his  mine,  he  hoped  during  the 
continuance  thereof  to  live  in  the  open  air, 
and,  by  adopting  the  course  recommended 
by  the  doctor,  to  cure  the  disease,  and  not 
put  in  a  claim.  Moore  v.  Naval  Colliery  Co. 
[1912]  1  K.  B.  (Eng.)  28,  81  L.  J.  K.  B. 
N.  S.  149,  105  L.  T.  N.  S.  838,  5  B.  W.  C.  C. 
87,  [1912]  W.  C.  Rep.  81. 

Where  an  injured  workman  failed  to  give 
notice  of  the  accident  because  he  thought 
his  injuries  were  only  slight,  and  did  give 
actual  notice  only  eighteen  weeks  after  the 
injury,  the  excuse  is  reasonable.  Millar  v. 
Refuge  Assur.  Co.  [1912]  S.  C.  37,  49  Scot. 
L.  R.  67,  5  B.  W.  C.  C.  522. 

Delay  may  be  found  to  be  due  to  rea- 
sonable cause  where  the  workman  was  aged 
and  crippled,  and  feared  that  if  he  applied 
for  compensation  the  insurance  company 
would  not  permit  the  employers  to  retain 
him,  and  he  did  give  notice  shortly  after 
he  found  that  he  would  never  be  able  to 
work  again.  Breakwell  v.  Clee  Hill  Granite 
Co.  (1911)  5  B.  W.  C.  C.  (Eng.)  133. 

A  county  court  judge  is  justified  in  find- 
ing that  a  workman  had  reasonable  cause 
for  failing  to  give  notice  of  an  injury  which 
resulted  in  a  rupture,  where,  although  he 
was  aware  at  the  time  that  he  had  received 
some  form  of  an  injury,  did  not  think  that 
it  was  serious,  and,  as  a  matter  of  fact, 
did  not  lose  an  hour's  time  for  months  after 
receiving  such  injury,  and  did  give  notice  as 
soon  as  he  reali/ed  that  the  injury  was  of 
a  serious  character.  Zillwood  v.  Winch 


EXCUSES  FOR  DELAY  OF  NOTICE  OR  CLAIM. 


91 


of  the  injury  appears,80  and  the  mere 
hope  on  the  part  of  the  injured  workman 
that  he  would  get  better  and  would  not 
have  to  make  any  claim  has  been  held 
not  sufficient  to  justify  him  in  delaying 
the  making  of  the  claim  for  over  two 
months,  where  he  suffered  severely  all 
of  the  time.81  So,  the  fact  that  a  work- 
man thought  that  an  injury  to  his 
knuckle  was  trivial  is  not  sufficient  rea- 
son to  justify  his  failure  to  give  notice 
of  the  accident,  where,  two  days  after 
the  accident,  the  finger  pained  him  so 
that  he  could  not  hold  his  hammer,  and 


was  obliged  to  knock  off  work,  and  two 
days  thereafter  the  finger  was  in  such 
a  septic  condition  that  amputation  was 
necessary.82  And  the  fact  that  a  miner's 
doctor  did  not  think  that  his  injury 
would  turn  out  seriously  does  not  justify 
him  in  regarding  it  as  trivial,  where,  as  a 
matter  of  fact,  it  prevented  him  from 
doing  his  ordinary  work.83 

The  mistake  referred  to  in  $  2  is  a 
mistake  of  fact,  and  not  a  mistake  of 
law,84  and  ignorance  of  the  existence  of 
the  compensation  act  does  not  excuse 
failure  to  give  the  notice.85  The  unful- 


[1914]   W.  C.  &  Ins.  Rep.    (Eng.)   87,  7  B. 
W.  C.  C.  60. 

Failure  to  give  notice  of  injury  for  up- 
wards of  two  years  may  be  found  to  be 
excusable  where  the  injury  was  caused  by 
a  strain,  and  the  workman  did  not  know 
that  he  was  severely  injured,  and,  after 
resting  for  an  hour,  was  able  to  go  on  with 
his  work,  and  the  injury  did  not  trouble 
him  during  the  interval  except  on  one  occa- 
sion, and  then  but  slightly,  and  notice  was 
given  shortly  after  he  became  incapacitated. 
Coulson  v.  South  Moor  Colliery  Co.  (1915) 
84  L.  J.  K.  B.  N.  S.  (Eng.)  508,  112  L.  T. 
N.  S.  901,  31  Times  L.  R.  207,  [1914]  W.  C. 

6  Ins.  Rep.  161,  [1915]  W.  N.  83,  8  B.  W. 
C.  C.  253. 

The  county  court  judge  may  find  that 
notice  was  given  as  soon  as  practical  after 
the  injury,  where  the  workman  was  injured 
by  the  slipping  of  his  bicycle,  but  did  not 
believe  that  his  injuries  were  serious,  and 
gave  notice  about  two  months  thereafter, 
as  soon  as  he  learned  that  a  cancer  had 
developed  from  the  injury.  Haward  v.  Row- 
sell  [1914]  W.  C.  &  Ins.  Rep.  (Eng.)  314, 

7  B.  W.  C.  C.  552. 

80  Where   a   workman   was   injured   by   a 
blow  on  the  breast,  which  in  a  few  days  did 
not  appear  to  be  at  all  dangerous,  and  was 
latent  for  six  months,  when  a  swelling  came 
on  his  breast,  and  he  failed  for  nearly  six 
months    thereafter    from    giving    notice    to 
the  employers  in  respect  to  the  injury,  he 
cannot  obtain  the  benefit  of  the  proviso  of 
§   2,  subsec.   1.     Egerton   v.   Moore    [1912J 
2  K.  B.    (Eng.)    308,  81  L.  J.  K.  B.  N.   S. 
696,  106  L.  T.  N.  S.  663,  [1912]  W.  C.  Rep. 
250,  [1912]  W.  N.  89,  5  B.  W.  C.  C.  284. 

Notice  of  the  accident  cannot  be  held  to 
have  been  given  within  a  reasonable  time, 
where  a  man  suffered  a  slight  injury,  and 
the  wound  thereafter  healed,  but  septic  poi- 
soning supervened,  and  no  notice  was  given 
for  nearly  a  month  after  the  workman  knew 
that  his  condition  was  serious.  Eydmann  v. 
Premier  Accumulator  Co.  (1915)  8  B.  W.  C. 
C.  (Eng.)  121. 

81  Webster  v.  Cohen  Bros.   (1913)   108  L. 
T.  N.  S.    (Eng.)    197,  29  Times  L.  R.  217, 
[1913]   W.  C.  &  Ins.  Rep.  268,  57   Sol.  Jo. 
244,  6  B.  W.  C.  C.  92. 

82  Wassel  v.  Russell  (1915)   112  L.  T.  N. 
S.  (Eng.)  902  [1915]  W.  C.  &  Ins.  Rep.  88, 
[1915]  W.  N.  69,  8  B.  W.  C.  C.  230. 
L.R.A.1916A. 


83  Fox    v.    Barrow    Hematite    Steel    Co. 
(1915)    84  L.  J.  K.  B.  N.  S.    (Eng.)    1327, 
Pickford,  L.  J.,  said:     "The  only  cause  that 
is    suggested    here    is    that    the    workman 
honestly  thought,  and  had  reason  to  think, 
that    the    injury    was    trivial.     Now,    in    a 
sense    I   think    he   had.      That   he   thought 
and   had   reason   to   think   that   the   injury 
would  very  soon  get  better  in  the  ordinary 
course  of  things  I  think  was  the  case;   but 
I  do  not  think  that  that  concludes  the  mat- 
ter.    If,  at  the  time,  the  injury  was  of  a 
nature,  although  trivial  from  the  point  of 
view    which    I    have    already    indicated,    to 
interfere  with  the  man's  ordinary  avocation, 
it  could  not,  I  think,  within  the  cases  which 
have    been    referred    to    and    other    similar 
cases,    which   are    many,    be   considered   as 
trivial.     Of  course,  whether  this  be  so  or 
not  depends  upon  the  view  taken  of  the  evi- 
dence, and  I  confess  I  take  the  view  that 
the  learned  county  court  judge  took  of  the 
evidence, — namely,  that,  although  the  man 
thought  that  this  injury  would  in  all  proba- 
bility get  better  in  a  very  short  time,  and 
turn  out  as,  in  ordinary  language,  nothing 
serious,  and  although  the  doctor's  evidence 
shows  he  was  justified  in  so  thinking,  still, 
while  the  injury  existed  in  the  condition  in 
which   it   was   immediately   after   the   acci- 
dent and  before  it  got  worse,  the  man  was 
not  able  to  work.     He  did  not  work  in  the 
evening  the  accident  happened, — I  mean,  at 
his  ordinary  work.    He  only  helped  to  push 
a  tub,  and  he  did  not  work  at  his  ordinary 
work  because  of  the  injury  to  his  eye,  which 
prevented  him  from  so  doing, — perhaps  not 
absolutely   made   it   impossible   for  him   to 
work,  but   prevented   him   in   the   ordinary 
sense  from  working.    ...    It  seems  to  me 
that  an  injury   which  incapacitates  a  man 
or  hinders  a  man  seriously  from  doing  his 
ordinary  work  cannot  be  considered  so  trivi- 
al as  to  make  it  reasonable  for  him  not  to 
give  notice  of  it,  simply  because  the  man 
thinks,  and  has  reason  to  think,  that  it  will 
in  all  probability  get  better  within  a  short 
time." 

84  Egerton    v.    Moore     [1912]     2    K.     B. 
(Eng.)   308,  81   L.  J.  K.  B.  N.  S.  696,  106 
L.   T.   N.   S.   663,    [1912]    W.   C.   Rep.   250, 
[1912]  W.  N.  89,  5  B.  W.  C.  C.  284;  Bruno 
v.   International   Coal    &   Coke   Co.    (1913; 
Alberta)  7  B.  W.  C.  C.  1033. 

85  Roles  v.  Pascall  [1911]  1  K.  B.  (Eng.) 


WORKMEN'S  COMPENSATION. 


filled  expectation  of  a  workman  employ- 
ed by  a  subcontractor  that  the  latter 
will  notify  the  chief  contractor  of  an 
accident  to  the  workman  of  which  the 
latter  notified  the  subcontractor  is  not 
a  statutory  mistake.88 

982,  80  L.  J.  K.  B.  N.  S.  728,  104  L.  T.  N. 
S.  298,  4  B.  W.  C.  C.  148;  Melville  v. 
M'Carthy  (Ir.)  [1913]  W.  C.  &  Ins.  Rep. 
353,  cited  in  Law  Reports  Current  Dig.  1913, 
col.  725;  Judd  v.  Metropolitan  Asylums 
Board  [1912]  W.  C.  Rep.  (Eng.)  220,  5  B. 
W.  C.  C.  420;  Bruno  v.  International  Coal 
&  Coke  Co.  (1913;  Alberta)  7  B.  W.  C.  C. 
1033. 

86  Where    a    workman    merely    tells    the 
subcontractor  who  employs  him  of  his  in- 
jury,  in   the   expectation   that  the   subcon- 
tractor will  tell  the  employer,  and  does  not 
give  written  notice  for  five  months,  there  is 
no  mistake  which  will  excuse  the  failure  to 
give   notice.     Griffiths   v.   Atkinson    (1912) 
106  L.  T.  N.   S.    (Eng.)    852,    [1912]   D.  C. 
Rep.  277,  5  B.  W.  C.  C.  345. 

87  Failure    to   give    notice    for    over    two 
years  may  be  found  to  be  excusable  where 
the.  workman  was  sick  during  that  period, 
and    was    in    a    foreign    country,    spending 
most   of   the   time   in   hospitals.      Dight   v. 
Craster  Hall  [1913]  3  K.  B.  (Eng.)  700,  82 
L.  J.  K.  B.  N.  S.  1307,  109  L.  T.  N.  S.  200, 
29  Times  L.  R.  676,  [1913]  W.  N.  259,  6  B. 
W.  C.  C.  674. 

The  failure  to  give  prompt  notice  of  the 
accident  is  excusable  where  the  applicant 
was  absent  from  the  United  Kingdom  at 
the  time,  and  the  delay  after  her  return, 
which  was  accomplished  as  soon  as  practica- 
ble, was  occasioned  by  legal  advice  to  the 
effect  that  her  time  to  give  notice  had  ex- 
pired. Smith  v.  Pearson  (1909;  C.  C.)  2  B. 
W.  C.  C.  (Eng.)  468. 

The  finding  of  the  county  court  judge 
that  a  workman's  failure  to  make  a  claim 
within  six  months  was  "due  to"  his  ab- 
sence from  the  United  Kingdom,  instead 
of  finding  that  it  was  "occasioned  by,"  does 
not  invalidate  his  finding.  Dight  v.  Craster 
Hall  (Eng.)  supra. 

88  The   fact  that  the  applicant  had  been 
eight   weeks    in   the   hospital   is   a   reason- 
able   excuse   for   not    giving   notice    within 
six  weeks.    Ex  parte  Dunn  (1911)  28  W.  N. 
New  So.  Wales,  9. 

89  An  agreement  arrived  at  between  the 
parties    shortly    after    the    accident,    that 
there   is   a   statutory   liability   on   the   em- 
ployer   to   pay    compensation,   the    amount 
of  compensation  being  left  open  for  future 
settlement,  is  evidence  upon  which  the  judge 
or   arbitrator   may   properly   find   that   the 
employer  is  estopped   from   setting  up   the 
defense  that  the  request  for  arbitration  was 
not  filed  within  six  months  of  the  accident. 
Having  allowed   the  six   months   to   expire 
while  the  negotiations  were  still  proceeding, 
the  employer  cannot  then  turn  round  and 
say  that  the  time  for  claiming  compensa- 
tion has  gone  by.    Wright  v.  Bagnall  [1900] 
L.R.A.1916A. 


Absence  from  the  United  Kingdom  has 
been  held  a  sufficient  excuse  in  a  few 
cases,87  as  has  serious  sickness  immed- 
iately following  the  injury.88 

The  conduct  of  the  employer  may  be 
such  that  he  will  be  held  to  have  waived 
the  giving  of  the  notice,89  or  any  defects 


2  Q.  B.  (Eng.)  240,  82  L.  T.  N.  S.  346,  69 
L.  J.  Q.  B.  N.  S.  551,  64  J.  P.  420.  48  Week. 
Rep.  533,  16  Times  L.  R.  327. 

Where  a  workman  engaged  in  lifting 
heavy  cases  felt  a  severe  strain  internally, 
and  informed  his  foreman  that  an  old  rup- 
ture had  come  down,  and  that  he  would  con- 
sult a  doctor,  and  having  been  informed 
by  the  doctor  that  he  would  have  to  under- 
go an  operation,  he  so  informed  his  em- 
ployer, who  agreed  to  make  weekly  pay- 
ments of  half  wages,  the  county  court  judge 
may  find  that  the  employer  had  been  in- 
formed of  the  accident  as  soon  as  possible, 
and  was  not  prejudiced  by  want  of  or  any 
defect  or  inaccuracy  in  the  notice,  although 
he  had  not  been  given  a  written  notice. 
Ralph  v.  Mitchell  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  501,  6  B.  W.  C.  C.  678. 

Employers  who  have  paid  full  compensa- 
tion for  more  than  four  months  are  there- 
after estopped  from  claiming  that  notice  of 
the  accident  was  not  given  as  soon  as  possi- 
ble, and  that  they  were  prejudiced  thereby. 
Turnbull  v.  Vickers  (1914)  7  B.  W.  C.  C. 
(Eng.)  396. 

In  Luckie  v.  Merry  (1915)  31  Times  L. 
R.  (Eng.)  466,  [1915]  W.  N.  243,  59  Sol. 
Jo.  544,  it  was  held  that  the  county  court 
judge  may  find  that  there  was  reasonable 
excuse  for  failure  to  give  notice  of  an  acci- 
dent, where  the  injured  workman  had  been 
for  seventeen  years  in  the  employment  of 
the  respondent  as  a  horse  keeper,  and,  up- 
on crushing  his  fingers,  went  to  the  employ- 
er, who  told  him  to  potter  in  the  factory 
until  he  was  better,  which  he  did,  and  for 
more  than  six  months  remained  in  the  em- 
ployment, doing  his  old  work  and  receiving 
his  old  wages,  when  he  was  discharged  for 
reasons  not  connected  with  the  accident. 
The  master  of  the  rolls  distinguished  two 
Irish  cases  which  were  cited  by  the  county 
court  judge  as  authority  for  holding  that 
there  was  no  reasonable  excuse  shown.  The 
first  of  these  cases  was  Healy  v.  Galloway, 
41  Ir.  Law  Times,  5,  which  was  a  case  under 
the  old  law,  which  did  not  provide  for  a  plea 
of  reasonable  excuse.  The  decision  of  the 
court  in  this  case  was  that  the  mere  fact 
that  the  employer  had  paid  wages  after 
the  accident  was  not  such  a  circumstance 
as  amounted  to  a  waiver  by  the  employer 
of  the  necessity  of  making  a  claim,  or,  to 
put  it  in  another  way,  was  not  a  founda- 
tion for  an  estoppel  to  prevent  the  master 
from  asserting  that  no  claim  had  been 
made.  The  Healy  Case  was  cited  in  the 
second  case  mentioned,  Lynch  v.  Lansdowne, 
48  Ir.  Law  Times,  89,  as  authority  for  the 
proposition  that  mere  payment  of  wages 
from  an  employer  to  an  injured  workman 
after  the  latter  has  been  injured,  is  not 


SUBSTITUTION  OF  FRIENDLY  SOCIETY  SCHEME. 


therein  ;90  but  the  mere  payment  of  some 
•compensation  is  not  such  a  waiver  as  a 
matter  of  law.91 

y.  Substitution  of  scheme  approved  by 
friendly  society  for  provisions  of  the 
act  (§3). 

a.  Text  of  §  3. 

Section  3.  (1)  If  the  registrar  of 
friendly  societies,  after  taking  steps  to 
ascertain  the  views  of  the  emploj'er  and 
workmen,  certifies  that  any  scheme  of 
compensation,  benefit,  or  insurance  for 
the  workmen  of  an  employer  in  any  em- 
ployment, whether  or  not  such  scheme 
includes  other  employers  and  their  work- 
men, provides  scales  of  compensation  not 
less  favorable  to  the  workmen  and  their 
dependents  than  the  corresponding  scales 
contained  in  this  act,  and  that,  where 
the  scheme  provides  for  contributions 
by  the  workmen,  the  scheme  confers 
benefits  at  least  equivalent  to  those  con- 
tributions, in  addition  to  the  benefits  to 
which  the  workmen  would  have  been 
entitled  under  this  act,  and  that  a  ma- 
jority (to  be  ascertained  by  ballot)  of 
the  workmen  to  whom  the  scheme  is  ap- 
plicable are  in  favor  of  such  scheme,  the 
employer  may,  whilst  the  certificate  is 
in  force,  contract  with  any  of  his  work- 
men that  the  provisions  of  the  scheme 
shall  be  substituted  for  the  provisions 
of  this  act,  and  thereupon  the  employer 
shall  be  liable  only  in  accordance  with 
the  scheme;  but,  save  as  aforesaid,  this 
act  shall  apply  notwithstanding  any  con- 


tract to  the  contrary  made  after  the  com- 
mencement of  this  act. 

(2)  The  registrar  may  give  a  certifi- 
cate, to  expire  at  the  end  of  a  limited 
period  of  not  less  than  five  years,  and 

!  may  from  time  to  time  renew,  with  or 
without  modifications,  such  a  certificate, 
to  expire  at  the  end  of  the  period  for 
which  it  is  renewed. 

(3)  No   scheme   shall   be   so   certified 
which   contains  an  obligation   upon   the 
workmen  to  join  the  scheme  as  a  con- 
dition of  their  hiring,  or  which  does  not 
contain  provisions  enabling  a  workman 
to  withdraw  from  the  scheme. 

(4)  If  complaint  is  made  to  the  regis- 
trar of  friendly  societies,  by  or  on  behalf 
of  the  workmen  of  any  employer,  that 
the  benefits  conferred  by  any  scheme  no 
longer  conform  to  the  conditions  stated 
in  subsection  (1)  of  this  section,  or  that 
the  provisions  of  such  scheme  are  being 
violated,  or  that  the  scheme  is  not  being 
fairly  administered,  or  that  satisfactory 
reasons  exist  for  revoking  the  certificate, 
the  registrar  shall  examine  into  the  com- 
plaint, and,  if  satisfied  that  good  cause 
exists  for  such  complaint,  shall,  unless 
the  cause  of  complaint  is  removed,  re- 
voke the  certificate. 

(5)  When  a  certificate  is  revoked  or 
expires,  any  moneys  or  securities  held 
for  the  purpose  of  the  scheme  shall,  after 
due  provision  has  been  made  to  discharge 
the  liabilities  already  accrued,  be  distri- 
buted as  may  be  arranged  between  the 
employer  and  workmen,  or  as  may  be  de- 
termined  by   the   registrar   of   friendly 


sufficient  to  enable  the  court  to  draw  the 
inference  that  the  workman  had  reasonable 
«ause,  within  the  meaning  of  the  statute, 
for  not  making  the  claim  within  six  months 
from  the  date  of  the  accident.  The  master 
of  the  rolls,  in  Luckie  v.  Merry,  stated  that 
the  Healy  Case  could  not  be  authority  upon 
this  point  because,  in  that  case,  there  was 
no  question  of  reasonable  cause  whatsoever. 

90  Employers,  by  paying  compensation  for 
seven  weeks,  waived  any  defect  in  the  no- 
tice  of   accident.     Davies  v.   Point   of  Ayr 
Collieries  (1909)  2  B.  W.  C.  C.  (Eng.)   157. 

91  The  mere  fact  that  the  employer  has 
made   weekly   payments   to   a   workman   is 
not  such  evidence  of  an  admission  of  lia- 
bility  and   of   an   agreement   to   pay    com- 
pensation  as   will   enable   the   workman   to 
commence  proceedings  under  the  act  after 
th2  expiration  of  six  months  from  the  acci- 
dent,  where   the   employer   took    a    receipt 
which  stated  that  the  money  was  received 
on   account   of   compensation   which    might 
be  or  become  due   to  the   workman   under 
the   act.      Kendall    v.   Hill's   Dry   Docks    & 
Engineering  Co.  [1909]  2  Q.  B.   (Eng.)  245, 
69  L.  J.  Q.  B.  N.  S.  554,  64  J.  P.  451,  48 
Week.    Rep.    530,   82   L.    T.   N.    S.    521,    16 
L.R.A.1916A. 


Times  L.  R.  368,  distinguishing  Wright  v. 
Bagnall  [1900]  2  Q.  B.  (Eng.)  240,  82  L.  T. 
N.  S.  346,  69  L.  J.  Q.  B.  N.  S.  551,  64  J.  P. 
420,  48  Week.  Rep.  533,  16  Times  L.  R. 
327,  supra. 

The  fact  that  an  employer  for  a  period 
of  about  six  months  voluntarily  paid  an 
injured  workman  a  sum  in  excess  of  what 
he  would  have  had  to  pay  under  the  act 
does  not  bar  him  from  pleading  the  omis- 
sion to  begin  proceedings  within  the  pre- 
scribed six  months,  where  nothing  at  all 
had  been  said  between  the  parties  as  to  the 
act.  O'Neill  v.  Motherwell  [1906-07]  S.  C. 
(Scot.)  1076. 

Employers  are  not  estopped  from  claim- 
ing that  the  act  is  inapplicable  by  the  fact 
that  shortly  after  the  accident  they  wrote 
to  the  workman's  daughter  that  if  she 
would  forward  them  a  certificate  of  the 
doctor  attending  him,  stating  the  nature  of 
the  injuries  and  the  probable  period  of  in- 
jury, they  would  pay  him  whatever  was  due 
him  under  the  act  during  his  illness,  dating 
one  week  from  the  day  of  the  accident,  and 
that  thev  did  not  so  pay  him  for  a  period 
of  about  six  months.  Ross  v.  Smith  (1909) 
So.  Austr.  L.  R.  128. 


94 


WORKMEN'S  COMPENSATION. 


societies  in  the  event  of  a  difference  of 
opinion. 

(6)  Whenever  a  scheme  has  been  cer- 
tified as  aforesaid,  it  shall  be  the  duty 
of  the  employer  to  answer  all  such  in- 
quiries and  to  furnish  all  such  accounts 
in  regard  to  the  scheme  as  may  be  made 
or  required  by  the  registrar  of  friendly 
societies. 

(7)  The    chief   registrar   of    friendly 
societies  shall  include  in  his  annual  re- 
port the  particulars  of  the  proceedings 
of  the  registrar  under  this  act. 

(8)  The    chief   registrar   of    friendly 
societies  may  make  regulations  for  the 
purpose  of  carrying  this  section  into  ef- 
fect. 

[The  changes  in  $  3  are  for  the  most 
part  mere  matters  of  detail.] 

b.  Construction    of   this   section. 

The  provision  in  the  statute  against 
contracting  out  of  the  statute  refers  only 
to  contracts  as  to  future  injuries.92  A 
penal  clause  in  an  agreement  whereby 
a  workman  is  to  lose  all  rights  to  com- 
pensation unless  he  insists  in  an  appli- 
cation for  examination  by  a  medical  ref- 
eree under  certain  circumstances  is  void 
under  §  3,  subsec.  1  of  the  act.93  A  con- 
tract, under  §  3,  need  not  be  in  writing.94 

A  workman  who  has  agreed  to  accept 
the  provisions  of  a  duly  certified  scheme 
cannot  resort  to  the  act  in  any  way.95 


In  such  a  case  the  county  court  judge- 
has  no  jurisdiction  of  the  matter.96  And 
no  appeal  lies  to  the  court  from  the  de- 
cision of  a  committee  appointed  under  a 
scheme  formed  by  the  employer  and  ac- 
cepted by  the  workman,  where  all  the 
requirements  of  the  act  had  been  ful- 
filled, and  the  scheme  provided  that  the 
committee  had  power  to  determine  all 
claims  arising  under  the  scheme.97  But 
the  county  court  judge  is  not  ousted  if 
the  scheme  has  not  been  properly  certi- 
fied.98 And  a  minor  who  has  assented  to 
a  duly  certified  contracting-out  scheme 
is  not  bound  to  accept  payment  of 
amount  given  by  such  scheme  if  it  is 
not  beneficial  to  him.99 

Where  a  scheme  purports  to  be  in- 
tended as  a  substitute  for  the  act,  the- 
word  "accident"  in  the  scheme  will  be 
construed  as  having  the  same  meaning 
as  in  the  act,  and  to  include  disablement 
from  disease  described  in  $  8  of  the  act.1 

The  employer  is  not  entitled  to  deduct 
from  the  workman's  wages  a  contribution 
to  a  scheme  of  compensation  where  the 
original  scheme  to  which  the  workman 
had  consented  had  expired  by  lapse  of 
time,  and  the  new  scheme  certified  by 
the  registrar  of  friendly  societies  had 
not  been  agreed  to  by  the  workman.2 

As  to  the  recertifying  of  schemes  un- 
der the  act  of  1897,  so  as  to  render  them 
valid  under  the  act  of  1906,  see  post  128. 


92  Ryan  v.  Hartley  [1912]  2  K.  B.  (Eng.) 
150,  81  L.  J.  K.  B.  N.  S.  666,  106  L.  T.  N.  S. 
702,  [1912]  W.  C.  R.  236,  [1912]  W.  N.  115, 
5  B.  W.  C.  C.  407. 

93  British  &  S.  A.  Steam  Nav.  Co.  v.  Neil 
(1910)  3  B.  W.  C.  C.  (Eng.)  413. 

94  Berry  v.  Canteen  &  Mess.  Co-op.  Soc. 
(1910)  3  B.  W.  C.  C.  (Eng.)  449. 

95  Godwin  v.  Lords  Comrs.  of  Admiralty 
[1913]    A.   C.    (Eng.)    638,   82   L.   J.   K.   B. 
N.  S.  1126,  109  L.  T.  N.  S.  428,  29  Times 
L.  R.  774,  [1913]  W.  N.  267,  6  B.  W.  C.  C. 
788,    affirming   Court    of   Appeal    [1912]    2 
K.  B.  26,  81  L.  J.  K.  B.  N.  S.  532,  106  L.  T. 
N.  S.  136,  28  Times  L.  R.  229.  [1912]  W.  C. 
Rep.  49,  5  B.  W.  C.  C.  229,  56  Sol.  Jo.  307, 
[1912]  W.  N.  45. 

A  workman  who  has  come  in  under  a 
scheme,  duly  certified  under  §  3  of  the  act, 
and  has  signed  an  agreement,  is  outside  of 
the  provisions  of  the  act  altogether,  and 
cannot  subsequently  obtain  compensation 
from  the  employer,  although  the  scheme 
was  terminated  in  consequence  of  its  not 
being  recertified  under  the  act.  Howarth 
v.  Knowles  [1913]  3  K.  B.  (Eng.)  675,  82 
L.  J.  K.  B.  N.  S.  1325,  109  L.  T.  N.  S.  278, 
29  Times  L.  R.  667,  57  Sol.  Jo.  471,  [1913] 
W.  N.  237,  6  B.  W.  C.  C.  596. 

96  A  workman  who  has  signed  an  agree- 
ment  to   accept   compensation   certified   by 
L.R.A.1916A. 


the  chief  registrar  of  friendly  societies  is 
outside  the  provisions  of  the  act  altogether. 
Horn  v.  Lords  Comrs.  of  Admiralty  [1911] 

1  K.   B.    (Eng.)    24,   80   L.  J.  K.   B.   N.   S. 
278,  103  L.  T.  N.  S.   614,  27   Times  L.  R. 
84,  4  B.  W.  C.  C.  1. 

97  Allen   v.  Great  Eastern  R.  Co.    [1914] 

2  K.  B.    (Eng.)    243,   110  L.  T.   N.  S.  498, 
[1914]  W.  N.  33,  83  L.  J.  K.  B.  N.  S.  898,. 
[1914]  W.  C.  &  Ins.  Rep.  388. 

98  Where  a  duly  certified  scheme  provided 
that  the  funds  were  to  be  managed  in  ac- 
cordance  with   rules  not   inconsistent   with 
the  scheme,  to  be  framed  from  time  to  timef 
which  rules  had  not  been  certified,  and  it 
was  found  as  a  matter  of  fact  that  the  rules 
were    inconsistent    with    the    scheme,    the 
scheme,  as  modified  by  the  rules,  cannot  be 
said  to  be  a  properly  certified  scheme.    Moss 
v.   Great   Eastern   R.   Co.    [1909]    2   K.   B. 
(Eng.)   274,  78  L.  J.  K.  B.  N.  S.  1048,  100 
L.  T.  N.  S.  747,  25  Times  L.  R.  466,  2  B.  W. 
C.  C.  168. 

99  Morter  v.  Great  Eastern  R.  Co.   ( 1908 ; 
C.  C.)  126  L.  T.  Jo.  (Eng.)  171,  2  B.  W.  C.  C. 
480. 

iLeaf  v.  Furze  (Div.  Ct.)  [[1914]  3  K. 
B.  (Eng.)  1068,  83  L.  J.  K.  B.  N.  S.  1822. 

2  Wilson  v.  Ocean  Coal  Co.  (1905)  21 
Times  L.  R.  (Eng.)  621,  affirming  21 
Times  L.  R.  195. 


LIABILITY  TO  SERVANTS  OF  CONTRACTORS. 


95 


VI.  Liability  to  servants  of  contractors 

(§  4). 

a.   Text  of  §  4. 

Section  4.  (1)  Where  any  person  (in 
this  section  referred  to  as  the  principal), 
in  the  course  of  or  for  the  purposes  of 
his  trade  or  business,  contracts  with  any 
other  person  (in  this  section  referred  to 
as  the  contractor)  for  the  execution,  by 
or  under  the  contractor,  of  the  whole  or 
any  part  of  any  work  undertaken  by  the 
principal,  the  principal  shall  be  liable 
to  pay  to  any  workman  employed  in  the 
execution  of  the  work  any  compensation 
under  this  act  which  he  would  have  been 
liable  to  pay  if  that  workman  had  been 
immediately  employed  by  him;  and 
where  compensation  is  claimed  from  or 
proceedings  are  taken  against  the  prin- 
cipal, then,  in  the  application  of  this  act, 
references  to  the  principal  shall  be  sub- 
stituted for  references  to  the  employer, 
except  that  the  amount  of  compensation 
shall  be  calculated  with  reference  to  the 
earnings  of  the  workman  under  the  em- 
ployer by  whom  he  is  immediately  em- 
ployed :  Provided  that,  where  the  con- 
tract relates  to  threshing,  plowing,  or 
other  agricultural  work,  and  the  con- 
tractor provides  and  uses  machinery  by 
mechanical  power  for  the  purpose  of 
such  work,  he  and  he  alone  shall  be  liable 
under  this  act  to  pay  compensation  to 
any  workman  employed  by  him  on  such 
work. 

(2)  Where  the  principal  is  liable  to 
pay  compensation  under  this  section,  he 
shall  be  entitled  to  be  indemnified  by 
any  person  who  would  have  been  liable 
to  pay  compensation  to  the  workman  in- 
dependently of  this  section,  and  all  ques- 
tions as  to  the  right  to  and  amount  of 
any  such  indemnity  shall  in  default  of 
agreement,  be  settled  by  arbitration  un- 
der this  act. 

(3)  Nothing  in  this  section  shall  be 
construed  as  preventing  a  workman  re- 
covering   compensation    under   this    act 
from  the  contractor  instead  of  the  prin- 
cipal. 

(4)  This   section   shall   not   apply   in 
any   case   where   the   accident   occurred 
elsewhere  than  on  or  in  or  about  prem- 
ises on  which  the  principal  has  under- 
taken to  execute  the  work,  or  which  are 
otherwise  under  his  control  or  manage- 
ment. 

[Section  4  of  the  original  act  provided 
as  follows: 

Section  4.  Where,  in  an  employment 
to  which  this  act  applies,  the  under- 
takers, as  hereinafter  denned,  contract 
with  any  person  for  the  execution  by  or 
L.R.A.1916A. 


under  such  contractor  of  any  work,  and 
the    undertakers    would,   if    such    work 
were  executed  by  workmen  immediately 
!  employed  by  them,  be  liable  to  pay  com- 
pensation under  this  act  to  those  work- 
men in  respect  of  any  accident  arising 
;  out  of,  and  in  the  course  of,  their  em- 
1  ployment,  the  undertakers  shall  be  liable 
j  to  pay  to  any  workmen  employed  in  the 
|  execution  of  the  work  any  compensation 
]  which  is  payable  to  the  workmen  (wheth- 
j  er  under  this  act,  or  in  respect  of  per- 
i  sonal  negligence  or  wilful  act  independ- 
:  ently  of  this  act)  by  such  contractor,  or 
|  would  be  so  payable  if  such  contractor 
,  were  an  employer  to  whom  this  act  ap- 
|  plies :     Provided,   that   the   undertakers 
I  shall   be  entitled  to   be  indemnified  by 
j  any  other  person  who  would  have  been 
[  liable  independently  of  this  section. 

This  section  shall  not  apply  to  any 
j  contract  with  any  person  for  the  exe- 
cution by  or  under  such  contractor  of 
any  work  which  is  merely  ancillary  or 
incidental  to,  and  is  no  part  of,  or  pro- 
cess in,  the  trade  or  business  carried  on 
by  such  undertakers  respectively.] 

b.  In  general. 

The  meaning  of  the  word  "under- 
takers," as  used  in  this  section,  is  dis- 
cussed in  connection  with  the  cases  dis- 
cussing the  meaning  of  the  word  as  used 
in  the  factory  act.  See  post,  209. 

It  is  stated  in  respect  to  $  4  of  the 
earlier  act,  and  the  statement  applies 
equally  well  to  this  section  of  the  pres- 
ent act,  that  it  "contemplates  the  case 
of  persons  who,  being  undertakers  in  re- 
spect to  a  particular  class  of  business, 
substitute  for  themselves  a  contractor 
to  do  some  part  of  that  business,  and 
provides  that  the  workmen  of  such  a  con- 
tractor shall  have  the  same  rights 
against  such  persons  as  they  would  have 
if  they  were  employed  by  them."  3.  The 
principal  will  not  be  held  liable  for  com- 
pensation to  a  man  who  has  no  claim 
against  the  contractor.4 

The  act  does  not  impose  joint  liability, 
so  that  an  application  for  compensation 
from  both  the  principal  and  the  con- 
tractor will  be  dismissed ;  6  and  where 


8  Collins,    L.    J.    in    Wrigley    v.    Bagley 
[1901]  1  K.  B.   (Eng.)   780. 

4  Marks  v.  Came   [1909]   2  K.  B.    (Eng.) 
516,  78  L.  J.  K.  B.  N.  S.  853,  100  L.  T.  N. 
S.  950,  25  Times  L.  R.  620,  53  Sol.  Jo.  561, 
2  B.  W.  C.  C.  186   (the  workman  was  the 
son  of  the  contractor,  dwelling  in  the  same 
house  with  him). 

5  The  widow  and  children  of  a  workman 
who  was  killed  while  working  in  the  em- 
ployment of  a  glass  merchant,  on  the  roof 


WORKMEN'S  COMPOS  SATIOX. 


a  workman  employed  by  a  contractor 
was  injured,  and  proceeded  against  the 
contractor,  and  recovered  compensation, 
he  could  not  thereafter  proceed  against 
the  principal,  although  the  contractor 
went  bankrupt  and  his  insurance  com- 
pany went  into  liquidation.6 

A  subcontractor  is  liable  to  indemnify 
the  principal  contractor  under  the  pro- 
visions of  §  4  of  the  act,  where  the  latter 
has  been  obliged  to  pay  compensation  to 
one  of  the  subcontractor's  employees.7 

c.  "In  the  course  of  or  for  the  purposes 
of"  the  principal's  "trade  or  busi- 
ness." 

The  work  of  cleaning  the  boilers  of 
one  of  their  ships  lying  in  a  harbor, 
which  work  is  left  to  independent  con- 
tractors, is  not  undertaken  by  the  ship- 
owners "in  the  course  of  or  for  the 
purposes  of"  their  trade  or  business ;  8 
nor  is  the  tarring  on  the  outside  of  a  tank 
used  by  chemical  manufacturers  in  the 
course  of  or  for  the  purpose  of  the  trade 
or  business  of  the  manufacturers ;  9  nor 
is  the  repairing  of  a  house  for  his  own 


occupancy  "in  the  course  of  or  for  the 
purposes"  of  the  trade  or  business  of  a 
real  estate  agent.10  And  a  company  en- 
gaged in  the  manufacture  of  wood  is 
not  liable  for  compensation  to  a  work- 
man employed  by  a  contractor  to  stack 
wood,  where  it  appeared  that  the  manu- 
facturers never  stacked  the  wood  them- 
selves, but  always  had  it  stacked  by 
contract.11  So,  a  painter  employed  casu- 
ally as  an  agent  to  do  work  on  the 
premises  of  his  principal,  who  was  a 
gentleman  living  in  the  country,  without 
business,  is  not  within  the  statute,  since 
the  employer  does  not  carry  on  a  "trade 
or  business."  12 

The  work  of  putting  gravel  on  ap- 
proaches to  a  level  crossing,  which  has 
been  ordered  by  the  Board  of  Railroad 
Commissioners,  is  work  for  the  purpose 
of  the  trade  or  business  of  the  railway 
company,  but  is  not  "in  the  way  of  their 
trade  or  business."  13  But  the  repairing 
of  the  roof  of  buildings  used  as  a  store 
and  as  a  granary  has  been  held  to  be 
for  the  purposes  of  the  trade  of  the 
occupant  of  the  store  or  granary,  so  as 


of  a  building  occupied  by  a  firm  of  wool 
manufacturers,  cannot  claim  compensation 
from  both,  and  an  application  for  compen- 
sation from  both  will  be  dismissed.  Herd 
v.  Summers  (1905)  7  Sc.  Sess.  Cas.  5th 
series  (Scot.)  870. 

6  Meier  v.  Dublin  [1912]  2  I.  R.  129, 
[1913]  W.  C.  &  Ins.  Rep.  30,  46  Ir.  Law 
Times,  233,  6  B.  W.  C.  C.  441. 

'Cooper  v.  Wright  [1902]  A.  C.  (Eng.) 
302,  71  L.  J.  K.  B.  N.  S.  642,  86  L.  T.  N.  S. 
776,  18  Times  L.  R.  622,  4  W.  C.  C.  75,  51 
Week.  Rep.  12;  Wagstaff  v.  Perks  (1902) 
51  Week.  Rep.  (Eng.)  210,  87  L.  T.  N.  S. 
558,  5  W.  C.  C.  110,  19  Times  L.  R.  112. 

8  Spiers  v.  Elderslie  S.   S.  Co.    [1909]    S. 
C.  1259,  46  Scot.  L.  R.  893  (not  one  of  the 
normal  operations  which  form  the  ordinary 
business    of    a    ship    owner) ;    Luckwell    v. 
Auchen   Steam  Shipping  Co.    [1913]    W.  C. 
&  Ins.  Rep.  (Eng.)  167,  108  L.  T.  N.  S.  52, 
12  Asp.   Mar.  L.   Cas.  286,   6  B.   W.   C.   C. 
51. 

9  A  firm  of  chemical  manufacturers  is  not 
liable  to  pay  compensation  to  a  workman  of 
a   person   who   had   contracted    to   tar   the 
outside  of  tanks  used  by  them  in  their  busi- 
ness.     Zugg   v.    Cunningham    [1908]    S.    C. 
(Scot.)   827.     Lord  M'Laren  observed:     "In 
the  present  circumstances  I  am  unable  to 
see  that  the  work  of  tarring  the  building 
in   question   was   work   undertaken   by   the 
appellants,  whose  business  is  not  the  erec- 
tion or  repair  of  structures,  but  the  manu- 
facture of  chemicals." 

10  Where    a     surveyor    and    real     estate 
agent,   who   had    been    instructed   to   let   a 
dwelling   house    by    its    owner,    decided    to 
take  the  house  himself,  and  contracted   to 
have   the   house   repaired,    as    he    was    au- 
thorized to  do  by  the  owner,  the  contract 
L.R.A.19]6A. 


does  not  relate  to  work  undertaken  by  the 
surveyor  in  the  course  of  and  for  the  pur- 
poses of  his  business.  Brine  v.  May  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  148,  6  B.  W.  C.  C. 
134. 

11  Hockley    v.    West    London    Timber    & 
Joinery   Co.    [1914]    3   K.   B.    (Eng.)    1013, 
83  L.  J.  K.  B.  N.  S.  1520,  [1914]  W.  N.  330, 
58  Sol.  Jo.  705. 

12  Miles  v.  Dawe  [1915]  W.  C.  &  Ins.  Rep. 
(Eng.)    29,   8  B.  W.  C.  C.  225    (case  arose 
under  §  13). 

13  Ringwood  v.  Kerr  Bros.  (1914;  Alberta) 
7  B.  W.  C.  C.  1056.     With  reference  to  §  6, 
paragraph  3,  of  the  Alberta  act,  the  court 
said:      "Under   this   section,   the   principal, 
the   railroad   company   in   this   case,   would 
be  liable  for  an  injury  to  an  employee  of 
the  contractor,  when  the  contract  is  made 
'in  the  course  of  or  for  the  purposes  of  its 
trade  or  business,  for  the  execution  by  or 
under  the  contractor,  of  the  whole  or  any 
part  of  any  work  undertaken  by  the  princi- 
pal, which  is  in  the  way  of  the  principal's 
trade  or  business."    The  court  further  said: 
"Now  it  seems  quite  clear  that  the  placing 
of  gravel  at  a  highway  crossing  is  not  work 
in  the  way  of  a  railway  company's  business, 
which    is    the   operation    of   trains,   and    is 
not  undertaken  by  the  company  within  the 
meaning    of    the    section."      This    decision 
seems  to  lay  down  a  very  strict  construc- 
tion of  the  statute.     If  the  business  of  a 
railway  company  is  merely  the  operation  of 
trains,  then  any  repair  work  done  upon  the 
track  would  not  come  within  the  purview 
of  the  statute.    It  certainly  seems  very  diffi- 
cult  to   distinguish    between    the    work    of 
placing  gravel  at  a  crossing  and  the  ordi- 
nary track  repairing  which  all  railway  com- 
panies have  to  perform. 


LIABILITY  TO  SERVANTS  OF  CONTRACTORS. 


97 


to  bring  the  workman  within  the  pro- 
tection of  the  act,  although  the  employ- 
ment was  of  a  casual  nature  under  § 
13.14  So,  casual  employment  to  lop  off 
trees  on  a  farm  being  carried  on  for 
profit  is  for  the  purpose  of  the  farmer's 
trade  or  business.15 

d.  Work    "undertaken    by    the   prin- 
cipal." 

Under  $  4,  it  is  not  sufficient  to  say 
that  the  work  done  was  for  the  purpose 
of  the  business;  it  must  also  be  a  part 
of  the  work  undertaken  by  the  prin- 
cipal.16 A  few  cases  have  turned  on  the 
meaning  of  this  phrase.17 

e.  "Premises    on    ivhich    the    principal 
IHIM  undertaken  to  execute  the  work." 

Under  $  4,  subsec.  4,  a  principal  con- 
tracting to  do  certain  work  in  connec- 
tion with  the  paving  of  a  street  cannot 


be  held  to  have  undertaken  to  execute 
the  work  on  every  street  radiating  from 
the  place  where  the  work  was  being 
done  over  which  the  subcontractor  might 
be  minded  to  take  his  cart  in  drawing 
away  the  refuse  from  the  street  where 
the  paving  was  being  done.18 

/.  Work  ' 'ancillary  or  incidental"  to 
the  trade  or  business  of  the  princi- 
pal. 

The  most  notable  change  in  $  4,  as  it 
appears  in  the  act  of  1906,  is  the  omis- 
sion of  the  second  paragraph  of  the 
original  act,  which  provided  that  the 
act  was  not  applicable  to  any  work 
"which  is  merely  ancillary  or  incidental 
to"  the  trade  or  business  carried  on  by 
the  undertaker.  The  decisions  as  to  the 
scope  of  the  phrase  quoted  are  not  con- 
sistent.19 


I*  The  dependents  of  a  laborer  engaged 
to  repair  a  roof  of  a  house  in  which  drap- 
ery, grocery,  and  hardware  business  is  car- 
ried on,  and  who  was  killed  while  so  em- 
ployed, are  entitled  to  compensation,  since 
he  was  employed  for  the  purpose  of  the 
trade.  Johnston  v.  Monasterevan  General 
Store  Co.  [1909]  2  I.  R.  108,  42  Ir.  Law 
Times,  268,  2  B.  W.  C.  C.  183. 

The  work  of  putting  tiles  on  the  roof  of 
a  farmer's  granary  is  for  the  purpose  of 
the  farmer's  business.  Blyth  v.  Sewell 
(1909;  C.  C.)  126  L.  T.  Jo.  (Eng.)  552,  2  B. 
W.  C.  C.  476. 

15  Cotter  v.  Johnson    (1911)    45   Ir.   Law 
Times,  259,  5  B.  W.  C.  C.  568. 

16  Hockley    v.    West    London    Timber    & 
Joinery  Co.  [1914]  3  K.  B.   (Eng.)  1013,  83 
L.  J.  K.  B.  N.  S.  1520,   [1914]   W.  N.  330, 
58  Sol.  Jo.  705. 

17  Where  a  farmer  arranged  with  the  ap- 
plicant, a  young  lad,  for  the  services  of  a 
threshing  machine  belonging  to  the  latter's 
father,  who  was  to  be  paid  20  s.  out  of  25  s., 
and  in  the  course  of  the  work  the  applicant 
was  injured,  he  is  not  entitled  to  compensa- 
tion, there  being  no  "work  undertaken  by 
the  principal."     Walsh  v.  Hayes   (1909)   43 
Ir.  Law  Times,  114. 

Where  the  respondents,  who  were  green 
grocers,  entered  into  a  joint  venture  with 
a  billiards  saloon  keeper  for  the  erection 
of  a  skating  rink  as  a  speculation,  and  em- 
ployed a  contractor  to  do  the  part  of  the 
work,  and  the  servant  of  the  contractor 
was  injured,  it  cannot  be  said  that  the  work 
on  which  the  applicant  was  employed  was 
work  "undertaken"  by  the  respondents  as 
principals  within  the  meaning  of  §  4  of  the 
act.  Skates  v.  Jones  [1910]  2  K.  B.  (Eng.) 
903,  79  L.  J.  K.  B.  N.  S.  1168,  103  L.  T. 
N.  S.  408,  26  Times  L.  R.  643,  3  B.  W.  C.  C. 
460. 

The  periodical  overhauling  and  cleaning 
of  a  barge  may  be  found  not  to  be  part  of 
the  business  carried  on  and  undertaken  by 
L.RA.1916A.  ' 


the  barge  owner.  Hayes  v.  Thompson 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  161,  6  B. 
W.  C.  C.  130. 

The  work  of  unloading  sulphur  from  a 
barge,  which  was  consigned  to  a  firm  of 
drug  grinders,  is  not  work  undertaken  by 
the  drug  grinders,  where  they  declined  to 
do  this  work  themselves,  as  they  had  pre- 
viously attempted  it,  and  found  that  their 
own  men  were  not  suitable  for  such  work. 
Bobbey  v.  Crosbie  (1915)  84  L.  J.  K.  B.  N. 
S.  (Eng.)  856,  112  L.  T.  N.  S.  900,  8  B.  W. 
C.  C.  236. 

A  municipal  corporation  which  purchased 
land  for  the  extension  of  its  market,  and 
sold  an  old  mill  on  the  premises,  to  be  torn 
down  and  carried  away,  is  liable  as  under- 
taker to  a  workman  employed  by  the  pur- 
chaser of  the  mill,  who  was  injured  in  the 
work  of  demolition.  Mulrooney  v.  Todd 
[1909]  1  K.  B.  (Eng.)  165,  78  L.  J.  K.  B. 
N.  S.  145,  100  L.  T.  N.  S.  99,  73  J.  P.  73,  25 
Times  L.  R.  103,  53  Sol.  Jo.  99  [1908]  W. 
N.  242. 

A  company  who  purchased  a  lighter  in 
England,  and  engaged  a  man  to  navigate 
it  to  Cape  Verd  for  them  and  to  provide 
and  pay  for  the  crew,  is  liable  for  injuries 
to  one  of  the  latter  during  the  voyage. 
Dittmar  v.  The  V.  593  [1909]  1  K.  B.  (Eng.) 
389,  78  L.  J.  K.  B.  N.  S.  523,  100  L.  T.  N.  S. 
212,  25  Times  L.  R.  188. 

18  Andrews   v.   Andrews    [1908]    2   K.   B. 
(Eng.)  567,  77  L.  J.  K.  B.  N.  S.  974,  99  L. 
T.  N.  S.  214,  24  Times  L.  R.  709,  1  B.  W.  C. 
C.  264. 

19  The    following    operations    have    been 
held  to  be  "merely  ancillary"  to  the  busi- 
ness  of   the   defendant: 

The  erection  of  a  station  building  for  a 
railway  company  by  a  contractor.  Pearce  v. 
London  &  S.  W.  R.  Co.  [1900]  2  Q.  B.  (Eng.) 
100,  69  L.  J.  Q.  B.  N.  S.  683,  48  Week.  Rep. 
599,  82  L.  T.  N.  S.  473,  16  Times  L.  R. 
336. 

The  work  of  putting  a  new  driving  wheel 


98 


WORKMEN'S  COMPENSATION. 


VII.  Bankruptcy  or  winding  up  of  em- 
ployer under  contract  with  insurers 
(§  5). 

a.   Text  of  §  5. 

Section  5.  (1)  Where  any  employer 
has  entered  into  a  contract  with  any  in- 
surers in  respect  of  any  liability  under 
this  act  to  any  workman,  then,  in  the 
event  of  the  employer  becoming  bank- 
rupt, or  making  a  composition  or  ar- 
rangement with  his  creditors,  or,  if  the 
employer  is  a  company,  in  the  event  of 
the  company  having  commenced  to  be 
wound  up,  the  rights  of  the  employer 
against  the  insurers  as  respects  that  lia- 
bility shall,  notwithstanding  anything  in 
the  enactments  relating  to  bankruptcy 
and  the  winding  up  of  companies,  be 
transferred  to  and  vest  in  the  workman, 
and  upon  any  such  transfer  the  insurers 
shall  have  the  same  rights  and  remedies 
and  be  subject  to  the  same  liabilities  as 
if  they  were  the  employer,  so,  however, 
that  the  insurers  shall  not  be  under  any 
greater  liability  to  the  workman  than 
they  would  have  been  under  to  the  em- 
ployer. 

(2)  If  the  liability  of  the  insurers  to 
the  workman  is  less  than  the  liability 
of  the  employer  to  the  workman,  the 


workman  may  prove  for  the  balance  in 
the  bankruptcy  or  liquidation. 

(3)  There  shall  be  included  among  the 
debts  which,  under  §  1  of  the  preferen- 
tial  payments   in   bankruptcy   act   1888, 
and  $  4  of  the  preferential  payments  in 
bankruptcy   (Ireland)   act,  1889,  are,  in 
the    distribution   of   the   property   of   a 
bankrupt  and  in  the  distribution  of  the 
assets  of  a  company  being  wound  up,  to 
be  paid  in  priority  to  all  other  debts,  the 
amount,  not  exceeding  in  any  individual 
case  £100,  due  in  respect  of  any  com- 
pensation the  liability  wherefor  accrued 
before   the  date  of  the  receiving  order 
or  the  date  of  the  commencement  of  the 
winding  up ;  and  those  acts  and  the  pref- 
erential payments  in  bankruptcy  amend- 
ment act,  1897  shall  have  effect  accord- 
ingly.     Where    the    compensation    is    a 
weekly  payment,  the  amount  due  in  re- 
spect thereof  shall,  for  the  purposes  of 
this  provision,  be  taken  to  be  the  amount 
of  the  lump  sum  for  which  the  weekly 
payment    could,    if    redeemable,    be    re- 
deemed if  the  employer  made  an  appli- 
cation for  that  purpose  under  the  first 
schedule  to  this  act. 

(4)  In  the  case  of  the  winding  up  of  a 
company  within  the  meaning  of  the  stan- 
naries act  1887,  such  an  amount  as  afore- 


into  a  steam  engine  belonging  to  a  cotton 
factory,  where  such  work  is  done  under  con- 
tract bv  a  firm  of  engineers.  Wrigley  v. 
Bagley"[1901]  1  K.  B.  (Eng.)  780,  84  L.  T. 
N.  S.  415,  70  L.  J.  K.  B.  N.  S.  538,  65  J.  P. 
372,  49  Week.  Rep.  472,  affirmed  in  [1902] 
A.  C.  299,  71  L.  J.  K.  B.  N.  S.  600,  66  J.  P. 
420,  50  Week.  Rep.  656,  86  L.  T.  N.  S.  775, 
18  Times  L.  R.  559. 

The  fixing  of  an  iron  roof  by  a  subcon- 
tractor for  a  builder,  the  evidence  showing 
that  this  was  no  part  of  the  latter's  busi- 
ness. Bush  v.  Hawes  [1902]  1  K.  B.  (Eng.) 
216,  71  L.  J.  K.  B.  N.  S.  68,  85  L.  T.  N.  S. 
507,  66  J.  P.  260,  50  Week.  Rep.  311. 

The  erection  by  a  contractor  of  coal-haul- 
ing machinery  at  the  power  station  of  an 
electric  railway  company.  Brennan  v.  Dub- 
lin United  Tramways  Co.  [1900]  2  I.  R. 
(Ir.)  241. 

The  erection  by  a  contractor  of  a  retain- 
ing wall  to  protect  the  track  of  a  railway. 
Dundee  &  A.  Joint  R.  Co.  v.  Carlin  (1901) 

3  Sc.   Sess.   Cas.   5th   series,   843,   38   Scot. 
L.   R.   635,   9   Scot.   L.  T.   55    (servant   run 
over  by  train). 

The  work  of  a  man  employed  by  a  window 
cleaning  company,  who  was  injured  while 
cleaning  the  windows  of  the  defendant,  a 
firm  of  tailors.  Dempster  v.  Hunter  (1902) 

4  Sc.   Sess.   Cas.   5th   series,   580,   39   Scot. 
L.  R.  395,  9  Scot.  L.  T.  450. 

The  following  operations  have  been  held 
not  to  be  "merely  ancillary"  to  the  business 
of  the  defendant: 

Work  done  by  a  subcontractor  for  a  firm 
L.R.A.1916A. 


of  building  contractors,  who  habitually 
made  contracts  for  the  demolition  of  old 
buildings  on  the  site  of  which  new  ones- 
were  to  be  constructed.  Knight  v.  Cubitt 
[1902]  1  K.  B.  (Eng.)  31,  50  Week.  Rep.  113, 
18  Times  L.  R.  26,  71  L.  J.  K.  B.  N.  S.  65, 
66  J.  P.  52,  85  L.  T.  N.  S.  526. 

The  erection  of  signals  for  a  new  railway 
siding  by  a  contractor.  Burns  v.  North- 
British  R.  Co.  (1900)  2  Sc.  Sess.  Cas.  5th 
series,  629,  37  Scot.  L.  R.  448,  7  Scot.  L.  T. 
408  (workman  was  run  over). 

Work  done  in  the  course  of  his  employ- 
ment by  a  servant  of  .a  contractor  for  the 
collection  and  delivery  of  goods  conveyed 
by  a  railway  for  a  through  rate.  Green- 
hill  v.  Caledonian  R.  Co.  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  736,  37  Scot.  L.  R.  524,  T 
Scot.  L.  T.  458  (servant  injured  while  trans- 
ferring a  barrel  from  a  lorry  to  a  goods 
train). 

Carting  work  done  by  the  servant  of  a 
firm  of  contractor,  who  were  under  con- 
tract to  do  all  the  carting  work  in  con- 
nection with  a  factory.  Bee  v.  Ovens  (1900) 
2  Sc.  Sess.  Cas.  5th  series,  439,  37  Scot. 
L.  R.  328,  7  Scot.  L.  T.  362  (factory  owner 
held  liable). 

Work  done  by  a  carter  in  the  employ 
of  a  railway  company,  while  he  was  en- 
gaged in  transporting  the  goods  of  the 
defendants,  a  firm  of  sausage  makers,  to  a 
station  on  the  railway.  M'Govern  v.  Cooper 
(1902)  4  Sc.  Sess.  Cas.  5th  series,  249,  39- 
Scot.  L.  R.  102,  9  Scot  L.  T.  270. 


BANKRUPTCY  OR  WINDING  UP  OF  EMPLOYER. 


99 


said,  if  the  compensation  is  payable  to 
a  miner  or  the  dependents  of  a  miner, 
shall  have  the  like  priority  as  is  con- 
ferred on  wages  of  miners  by  §  9  of  that 
act,  and  that  section  shall  have  effect 
accordingly. 

(5)  The  provisions  of  this  section  with 
respect    to    preferences    and    priorities 
shall  not  apply  where  the  bankrupt  or 
the  company  being  wound  up   has   en- 
tered into  such  a  contract  with  insurers 
as  aforesaid. 

(6)  This  section  shall  not  apply  where 
a  company  is  wound  up  voluntarily  mere- 
ly for  the  purposes  of  reconstruction  or 
of  amalgamation  with  another  company. 

[This  section  is  merely  an  elaboration 
of  §  5  of  the  original  act.] 

b.  Proceedings  under  this  section. 

In  the  case  of  the  winding  up  or  bank- 
ruptcy of  an  employer  who  is  insured,  § 
5  of  the  act  gives  the  workman  only  the 
same  right  against  the  company  that  the 
employer  had ; 20  and  if  the  rights  of  a 
member  of  a  mutual  insurance  company 
have  been  legally  terminated,  the  work- 
man has  no  rights  against  the  company.21 
An  injured  workman  entitled  to  com- 


pensation has  no  right  against  the  estate 
of  his  bankrupt  employer  who  has  en- 
tered into  a  contract  with  an  insurer  as 
to  liability  under  the  compensation  act, 
and  the  fact  that  the  insurance  company 
is  also  insolvent  does  not  alter  the  situa- 
tion.22 Upon  an  employer's  becoming 
bankrupt,  the  right  which  he  has  or  his 
trustees  in  bankruptcy  have  against  the 
insurance  company  are  transferred  to, 
and  vested  in,  the  workman,  and  the  em- 
ployer has  lost  his  right  of  indemnity 
against  the  insurance  company.23  Where 
an  injured  employee  of  a  colliery  had 
been  receiving  compensation,  and  the 
assurance  company  in  which  the  employ- 
ers were  insured  consequently  went  into 
liquidation,  and  shortly  after  the  col- 
liery also  went  into  liquidation,  it  was 
held  that  the  employee  was  entitled  to  a 
sum  equal  to  the  annuity  of  his  compen- 
sation after  deducting  25  per  cent  in  ac- 
cordance with  the  assurance  company  act 
1909,  §  7,  and  the  amount  which  the  col- 
liery had  paid  the  workman  before  it 
went  into  liquidation  was  not  to  be  de- 
ducted.24 

Charges  incurred  in  obtaining  an 
award  are  not  preferential  debts  within 
the  meaning  of  §  5,  subsec.  3.26 


20  In  King  v.  Phoenix  Assur.  Co.  [1910]  2 
K.  B.  (Eng.)  666,  80  L.  J.  K.  B.  N.  S.  44,  103 
L.  T.  N.  S.  53,  3  B.  W.  C.  C.  442,  where  the 
policy  of  insurance  contained  a  clause  re- 
quiring disputes  between  the  insurers  and 
the  employer  to  be  submitted  to  arbitra- 
tion, and  there  was  a  genuine  dispute,  it 
was  held  that  an  injured  employee  could 
not  take  proceedings  in  the  county  court 
to  have  compensation  awarded  from  the 
company  until  the  dispute  had  been  sub- 
mitted to  arbitration  and  an  award  had 
been  made. 

An  appeal  lies  to  a  divisional  court  from 
an  order  of  a  county  judge  giving  a  work- 
man a  charge  upon  moneys  due  from  an 
insurer  to  the  employer.  Kniveton  v. 
Northern  Employers'  Mut.  Indemnity  Co. 
[1902]  1  K.  B.  (Eng.)  880,  18  Times  L.  R. 
504,  71  L.  J.  K.  B.  N.  S.  588,  50  Week. 
Rep.  704,  86  L.  T.  N.  S.  721;  Morris  v. 
Northern  Employers'  Mut.  Indemnity  Co. 
[1902]  2  K.  B.  (Eng.)  165,  71  L.  J.  K.  B. 
N.  S.  733,  66  J.  P.  644,  50  Week.  Rep.  545, 
86  L.  T.  N.  S.  748,  18  Times  L.  R.  635.  In 
those  cases  the  applications  were  held  not 
to  be  maintainable;  the  reasons  assigned 
being  that  the  workmen  were  merely  sub- 
rogated  by  the  statute  to  the  rights  of  the 
employers,  and  that,  having  regard  to  the 
circumstances  involved  and  the  terms  of 
the  contracts  between  the  employers  and 
the  insurers,  it  was  clear  that,  at  the  time 
when  the  applications  were  made,  there 
was  no  fund  in  respect  of  which  the  insurers 
were  liable  to  the  employers. 

2lDaff  v.  Midland  Colliery  Owners'  Mut. 
Indemnity  Co.  (1913;  H.  L.)  82  L.  J.  K.  B. 
N.  S.  (Eng.)  1340,  109  L.  T.  N.  S.  418,  29 
L.R.A.1916A. 


Times  L.  R.  730,  57  Sol.  Jo.  773,  [1913]  W. 
N.  256,  6  B.  W.  C.  C.  799. 

22  Re  Pethick  [1915]  1  Ch.   (Eng.)   26,  84 
L.  J.  Ch.  N.  S.  285,   112  L.  T.  N.  S.  212,. 
[1915]  W.  C.  &  Ins.  Rep.  5,  [1915]  H.  B.  R. 
59,  [1914]  W.  N.  403,  59  Sol.  Jo.  74.  Neville, 
J.,  took  the  position  that  the  result  of  §  5 
is    to    deprive    a    workman    of    his    rights 
against    his    employer's    estate    where    the 
latter   had   been   insured,   since   all   of   the 
employer's  rights  against  the  insurer  were 
transferred  to  the  workman;   and  to  hold 
otherwise,  and  say  that  the  liability  of  the 
employer  remains  because  it  is  not  express- 
ly released  under  the  section  would  enable 
the   workman   to   proceed   against   the   em- 
ployer, having,  by  the  transfer  of  the  em- 
ployer's rights  against  the  insurance  com- 
pany to  himself,  deprived  the  employer  of 
the    benefit    of    the    contract    that    he    has 
entered  into  with  the  insurer. 

23  The  trustees  in  bankruptcy  of  the  em- 
ployer of  an  injured  workman  have  no  right 
to  repayment  from  an  insurance  company 
of  sums  paid  to  the  workman  as  compensa- 
tion   on    account    of    his    injury,    since    the- 
rights   of   the   employer    have    been    trans- 
ferred to  the  workman,  and  whatever  may 
be  the  right  of  the  workman,  the  employer 
has    no    longer    any    right    to    indemnity. 
Craig  v.  Royal  Ins.  Co.   (1915;  Div.  Ct.)  84 
L.  J.  K.  B.  N.  S.  (Eng.)  333,  112  L.  T.  N.  S. 
291,   [1915]  W.  C.  &  Ins.  Rep.  139,   [1915] 
H.  B.  R.  57,  [1914]  W.  N.  442. 

24  Re    Law    Car    &    General    Ins.    Corp. 
(1913)   110  L.  T.  N.  S.   (Eng.)   27,  58  Sol. 
Jo.  251. 

25  Re  Jinks   (1914;  K.  B.  Div.)   137  L.  T. 
Jo.  (Eng.)  320. 


100 


WORKMEN'S  COMPENSATION. 


Appeals  from  orders  of  the  county 
court  judge  relative  to  payment  to  the 
workmen  by  insurance  companies  in 
which  the  bankrupt  employer  was  in- 
sured lie  to  the  divisional  court,  and 
not  to  the  court  of  appeal ; 26  and  an 
appeal  from  the  decision  of  the  county 
court  judge,  awarding  a  lump  sum  to  an 
injured  workman  against  the  receiver  or 
liquidator  of  the  employer,  does  not  lie 
to  the  court  of  appeal.27 

In  the  cases  cited  in  the  subjoined 
note,  all  of  which  arose  out  of  the  same 
transaction,  the  court  discusses  a  number 
of  questions  involving  $  6  of  the  British 
Columbia  workmen's  compensation  act  of 
1902,  which  is  similar  to  $  5  of  the  Eng- 
lish act  of  1897,  with  the  exception  that 
jurisdiction  is  given  to  a  judge  of  the 
supreme  court,  instead  of  to  the  judge 
of  the  county  court.28 

VIII-  Liability    of   third   person   ivliose 
negligence  causes  the  injury  (§  6) . 

a.  Text  of  §   6. 

Section  6.  Where  the  injury  for  which 
compensation  is  payable  under  this  act 
was  caused  under  circumstances  creat- 
ing a  legal  liability  in  some  person  other 
than  the  employer  to  pay  damages  in 
respect  thereof — 


(1)  The  workman  may  take  proceed- 
ings both  against  that  person  to  recover 
damages,  and  against  any  person  liable 
to  pay  compensation  under  this  act,  for 
such  compensation,  but  shall  not  be  en- 
titled to  recover  both  damages  and  com- 
pensation; and 

(2)  If    the    workman   has    recovered 
compensation   under  this   act,   the  per- 
son by  whom  the  compensation  was  paid, 
and  any  person  who  has  been  called  on 
to  pay  an  indemnity  under  the  section 
of  this   act  relating  to   subcontracting, 
shall  be  entitled  to  be  indemnified   by 
the  person  so  liable  to  pay  damages  as 
aforesaid;   and  all  questions  as  to  the 
right  to  and  amount  of  any  such  indem- 
nity shall,  in  default  of  agreement,  be 
settled  by  action,  or,  by  consent  of  the 
parties,  by  arbitration  under  this  act. 

[Section  6  of  the  original  act  provided 
as  follows: 

[Section  6  of  the  original  act  provided 
compensation  is  payable  under  this  act 
was  caused  under  circumstances  creat- 
ing a  legal  liability  in  some  person  other 
than  the  employer,  to  pay  damages  in 
respect  thereof,  the  workman  may,  at 
his  option,  proceed,  either  at  law  against 
that  person  to  recover  damages,  or 
against  his  employer  for  compensation 
under  this  act,  but  not  against  both;  and 


26  Leech   v.   Life   &   Health   Assur.   Asso. 
[1901]  1  K.  B.   (Eng.)   707,  70  L.  J.  K.  B. 
N.  S.  544,  84  L.  T.  N.  S.  414,  17  Times  L.  R. 
354,  49  Week.  Rep.   482,  3  W.  C.  C.  202; 
Kniveton  v.  Northern  Employer's  Mut.  In- 
demnity   Co.     (Div.    Ct.)     [1902]    \    K.    B. 
(Eng.)   880,  71  L.  J.  K.  B.  N.  S.  588,  86  L. 
T.  N.  S.  721,  50  Week.  Rep.  704,  18  Times 
L.  R.  504,  4  W.  C.  C.  37;  Morris  v.  Northern 
Employer's   Mut.   Indemnity   Co.    [1902]    2 
K.  B.  (Eng.)   165,  71  L.  J.  K.  B.  N.  S.  733, 
86  L.  T.  N.  S.  748,  66  J.  P.  644,  50  Week. 
Rep.  545,  18  Times  L.  R.  635,  4  W.  C.  C. 
38. 

27  Homer  v.  Gough  [1912]  2  K.  B.  (Eng.) 
303,  81  L.  J.  K.  B.  N.  S.  261,  105  L.  T.  N.  S. 
732,  5  B.  W.  C.  C.  51. 

28  In    Disourdi    v.    Sullivan    Group    Min. 
Co.    (1909)    14   B.   C.   256,   it   is   held   that 
this    provision    of    the    act    cannot    be    in- 
voked, unless  the  insurer  has  admitted  his 
liability,  or  has  been  found  by  a  competent 
tribunal  to  be  liable.     In  this  case  the  in- 
surer was  proposing  to  contest  his  liability. 

In   Disourdi   v.   Sullivan   Group   Min.   Co. 

(1909)  14    B.    C.    273,    the    application    of 
the    workman    for   an   order   that   the   em- 
ployer   and    the    insurers    proceed    to    the 
trial  of  an  issue  with  him  was  refused  on 
the  ground  that  any  right  which  he  might 
have  against  the  insurers  must  be  decided 
in    an    action    commenced   in   the    ordinary 
way. 

In   Disourdi   v.   Sullivan   Group  Min.   Co. 

(1910)  15  B.  C.  305,  on  the  ground  that 
L.R.A.1916A. 


there  was  no  privity  of  contract  between 
the  workman  and  the  insurer  of  the  em- 
ploying company,  it  was  held,  after  the 
company  had  become  insolvent,  that  he 
could  not,  by  any  proceedings  taken  in  his 
own  name,  establish  the  liability  of  the 
insurer  to  the  company,  and  that  the  lia- 
bility must  be  ascertained  by  the  liquidator 
of  the  company.  The  decision  of  Mac- 
donald,  C.  J.  A.,  proceeded  upon  the  ground 
that  the  liability  of  the  insurer  could  not 
be  ascertained  in  such  an  action  as  he  was 
maintaining.  "The  creation  of  the  charges 
alone,  without  reference  to  that  part  of 
the  section  which  gives  a  remedy  for  en- 
forcing it,  effects  the  subrogation  men- 
tioned in  the  English  cases."  The  view 
expressed  by  Irving,  J.  A.,  was  that  the 
liability  of  the  insurers  could  be  deter- 
mined only  in  an  action  in  which  the 
liquidator  of  the  insolvent  company  should 
be  plaintiff.  Martin,  J.  A.,  was  of  opinion 
that  an  action  in  the  supreme  court  could 
not  be  deemed  an  application  to  a  "judge 
of  the  supreme  court,"  in  the  sense  of  the 
statutory  provision. 

In  the  same  cases  an  action  to  obtain 
a  declaration  that  the  workman  was  en- 
titled to  a  first  charge  on  the  moneys  to 
which  his  employer  was  entitled,  and  for 
an  order  for  payment,  was  held  to  have 
been  rightly  dismissed.  The  dismissal  by 
the  trial  judge  was  rested  on  the  ground 
that  there  was  no  privity  of  contract  be- 
tween the  workman  and  the  insurers. 


LIABILITY  OF  THIRD  PERSON. 


101 


if  compensation  be  paid  under  this  act, 
the  employer  shall  be  entitled  to  be  in- 
demnified by  the  said  other  person.] 

&.  Joint  I inhil it ii  of  employer  and  third 
person. 

As  to  liability  of  third  person  whose 
negligence  caused  the  injury  under  the 
American  statutes,  see  post,  225. 

The  effect  of  §  6,  subsec.  1  of  the  act, 
is  that  although  an  injured  workman 
may  proceed  against  either  his  employer 
or  the  person  liable  for  damages,  there 
cannot  be  a  recovery  both  of  compen- 
sation and  of  damages,  and  the  recovery 
of  one  terminates  the  right  to  proceed 
for  the  other.29  So  a  workman  who  has 
obtained  an  award  for  the  payment  of 
compensation  cannot  subsequently  main- 
tain an  action  against  the  third  person 
whose  negligence  caused  the  accident.30 
And  the  father  of  a  workman  who  for 
three  years  had  received  full  compensa- 
tion from  his  employers,  and  who  sub- 
sequently died  as  the  result  of  his  in- 
juries, cannot  thereafter  bring  an  action  j 
based  on  fault,  against  a  third  person  ' 


whose  negligence  was  alleged  to  have 
caused  the  injury.81  Where  a  workman 
in  a  colliery  also  carried  on  a  small 
farm,  and  while  occupied  as  a  collier 
was  injured  by  the  negligence  of  a  third 
person,  and  recovered  compensation 
from  his  employer,  he  cannot  thereafter 
bring  an  action  for  damages  against  the 
third  party  and  recover  damages  for  in- 
juries which  he  has  suffered  as  a  farmer, 
although  such  damages  were  not  includ- 
ed in  the  compensation.32 

The  acceptance  of  payments  by  the 
injured  workman  from  a  person  other 
than  the  employer,  who  was  alleged  to 
be  liable  for  negligence,  although  no  ac- 
tion has  been  commenced  and  such  lia- 
bility is  not  admitted,  precludes  the 
workman,  under  §  6,  subsec.  1,  from  ob- 
taining compensation  from  the  employ- 
er.33 And  the  fact  that  a  workman 
expressly  reserves  his  right  to  compensa-* 
tion  does  not  affect  the  result.34  But  a 
servant  who,  having  received  one  pay- 
ment under  the  act  without  qualification, 
which  payment  was  offered  voluntarily 
by  the  employer,  refused  to  sign  any 


29  Where  a  workman  made  no  claim  and 
took  no  proceedings  under  the  act,  but 
merely  reported  the  accident  in  the  ordi- 
dary  way,  and  was  informed  that  he  was 
entitled  to  compensation,  and  afterwards 
received  the  maximum  amount  payable 
under  the  act,  he  will  be  deemed  to  have 
"recovered"  compensation,  and  will  be 
barred  from  proceeding  against  the.  person 
liable  in  damages  for  his  injury.  Mahomed 
v.  Maunsell  (1907;  C.  C.)  124  L.  T.  Jo. 
(Eng.)  153,  1  B.  W.  C.  C.  269. 

SOTong  v.  Great  Northern  R.  Co.  (1902; 
Div.  Ct.)  86  L.  T.  N.  S.  (Eng.)  802,  66  J. 
P.  667,  18  Times  L.  R.  566. 

31  Gray  v.   North   Britain   R.   Co.    (1914) 
52  Scot.  L.  R.  144,  8  B.  W.  C.  C.  373. 

32  Woodcock   v.   London  &  N.  W.  R.   Co. 
[1913]   3  K.  B.    (Eng.)    139,  82  L.  J.  K.  B. 
N.  S.  921,  109   L.   T.  N.   S.   253,  29  Times 
L.  R.  566,  [1913]  W.  N.  179,  [1913]   W.  C. 
&  Ins.  Rep.  563,  6  B.  W.  C.  C.  471.     This 
action  was  brought  in  the  divisional  court. 
Rowlatt,   J.,   said:      "The   right   to   recover 
damages    in    respect    of    a    personal    injury 
is  one  indivisible  right,  and  when  the  stat- 
ute  says   the   workman   is   not   entitled   to 
recover     damages, — unless     it     divides     the 
right   to   recover   damages, — it   must    mean 
that   he    is   barred   of   his   remedy   for   any 
common -law  damages  which  flow   from  the 
injury   which   he   has   traced   to   the   negli- 
gence  of   the  defendants.      I   do   not   think 
that    the"  statute    allows    any    other    than 
that   interpretation.     The   present   case   in- 
volves a  curious  position.     It  is  not  with- 
out its  hardship  to  the  plaintiff,  but  I  am 
bound  to  sav  that  I  do  not  see  any  ground 
for  doubting   that    in   law   he   must   fail    in 
the  claim  which  he  makes  against  the  rail- 
road   company." 

L.R.A.1916A. 


33  A  workman  is  precluded  from  obtain- 
ing compensation  from  his  employer  under 
the    act,    when    he    has    made    a   claim    for 
compensation  against  a   person   other  than 
his  employer,  alleged  to  be  liable  for  negli- 
gence,  and   has   received   various   payments 
in    satisfaction    of   his    claim,   although    he 
has   not   resorted  to   legal   proceedings   and 
no  legal  liability  is  admitted.    Page  v.  Burt- 
well    [1908]    2  K.   B.    (Eng.)    758,   77   L.  J. 
K.  B.  N.  S.  1061,  99  L.  T.  N.  S.  542. 

34  Where  an  injured  workman  has  made 
a  claim  for  damages  at  common' law  against 
a    person    other    than    his    employers,    and, 
without  having  taken  legal  proceedings,  has 
received    a    payment    in    settlement    of   his 
claim,  he  is  barred  from  claiming  compen- 
sation against  his  employers;   and   this  re- 
sult  is   not   prevented   by   a   clause   in   the 
receipt  given  by  him,  reserving  a  right  to 
claim    compensation    from    his    employers. 
Mulligan   v.   Dick    (1903)    6    Sc.    Sess.   Cas. 
5th  series,  126,  41  Scot.  L.  R.  77,  11  Scot. 
L.  T.  433. 

A  workman  in  the  employment  of  cart- 
ing contractors,  who  was  injured  while  em- 
ployed under  a  contract  between  the  con- 
tractors and  a  railway  company,  and  who, 
under  reservation  of  all  claims  he  might 
have  for  compensation  against  other  par- 
ties, asked  for  and  accepted  from  the  con- 
tractors a  payment  in  full  of  all  claims 
against  them,  under  any  statute  or  at 
common  law,  in  respect  of  the  injury,  is 
barred  by  the  terms  of  §  6  from  thereafter 
claiming  compensation  under  the  act  from 
the  undertakers.  Murray  v.  North  British 
R.  Co.  (1904)  6  Sc.  Sess.  Cas.  5th  series, 
540,  41  Scot.  L.  R.  383,  11  Scot.  L.  T.  746. 


102 


WORKMEN'S  COMPENSATION. 


other  receipt  except  subject  to  the  reser- 
vation "without  prejudice,"  subject  to 
which  other  payments  were  received,  has 
not  exercised  the  option  referred  to  in 
$  6  so  as  to  preclude  him  from  proceed- 
ing against  the  other  person  liable  for 
the  injury.35  And  a  workman  injured 
by  the  neglect  of  a  third  person,  who 
received  compensation  from  the  employ- 
er, expressly  reserving  his  right  against 
the  third  person,  and  agreeing  that  if 
he  recovers  damages  he  will  reimburse 
the  employer  for  the  amount  of  compen- 
sation received  from  him,  has  not  "re- 
covered compensation"  so  as  to  preclude 
him  from  proceeding  against  the  third 

-  i  Qft 

person  in   damages. 


c.  Employer's  rirjlit  to  indemnity  from 
third  person. 

The  employer  is  entitled  to  indemnity 
against  any  third  person  whose  negli- 
gence causes  injury  to  his  workman,  for 
which  injury  the  employer  is  obliged  to 
pay  compensation,37  including  fellow 
workmen  of  the  injured  employee.88 
But  he  cannot  maintain  an  action  for 
indemnity  against  third  persons  whose 
negligence  combined  with  that  of  his 
own  servants  to  produce  the  injury.39 
And  no  indemnity  is  recoverable  from  a 
third  person,  where  such  person  is  in 
no  wise  liable  to  the  workman.40 

The  phrase   "creating  a  legal  liabili- 


35  Oliver  v.  Nautilus  Steam  Shipping  Co. 
[1903]   2  K.  B.   (Eng.)   639,  72  L.  J.  K.  B. 
N.   S.   857,   89   L.   T.  N.   S.   318,   19   Times 

•L.  R.  697,  52  Week.  Rep.  200,  9  Asp.  Mar. 
L.  Cas.  436. 

36  Wright   v.   Lindsay    [1912]    S.   C.    189, 
49  Scot.  L.  R.  210,  5  B.  W.  C.  C.  531.     The 
lord  justice   clerk   said:      "Now,   the   ques- 
tion  in   the  circumstances   of   this   case   is, 
whether    the    pursuer    has     so    'recovered' 
compensation   that   he  is  barred  from  pro- 
ceeding   in    his    action.      Looking    to    the 
anangement   made   it   appears   to   me   that 
what  the  pursuer  has  received  is  not  com- 
pensation  recovered   under   the   act.     It   is 
of  the  nature  of  a   sum  advanced  by   the 
employers   under   conditions   which   exclude 
the  idea  of  its  being  a  final  acceptance  of 
compensation  under  the  act.     The  arrange- 
ment   is    in    every    sense    reasonable    and 
humane.     The  employer  knows  that  if  his 
servant  cannot  get  damages   from  the  al- 
leged wrongdoer,  he  must  provide  compen- 
sation.    But,  as  the  litigation  for  damages 
is    a    long    and    protracted    proceeding,    he 
arranges  with  the  workman,  'I  will  give  you 
now  what  corresponds  to  what  would  be  my 
liability,    so    that    you    may    be    supported, 
but  you  must  engage  to  me  to  return  me 
what   I    advance    if   you   are   successful    in 
getting   the    fuller   compensation    from    the 
wrongdoer.'    I  am  of  opinion  that  payments 
made   under   such   an    arrangement   are    no 
bar  to  action  at  law."     Lord  Salvesen  said: 
''Where  a  payment  is  made  by  an  employer 
to  his  workman  on  the  footing  that  he  shall 
be  entitled  to  rec  )ver  damages  at  common 
law    against    third    parties,    and    that    the 
sums    which    the    employer    has    disbursed 
are  to  be  repaid  out  of  any  damages  which 
he    may    so    recover,    I    think    the    case    is 
entirely    different.      The    compensation    so 
paid    is    in    the    nature   of   an    advance    by 
the   employer   for   the   maintenance   of   the 
pursuer  pending  proceedings  to  make  good 
his  claim,  and  js  only  accepted  as   in   full 
of    the    workman's    right    under    the    act 
against   his   employer   in   the   event   of   his 
claim  against  the  third  party  being  unsuc- 
cessful.    I  cannot   think   that   it   was   ever 
intended   that   the    act    should    make    inef- 
fectual an   arrangement  of  this  kind,  emi- 
L.R.A.1916A. 


nently  reasonable  from  the  point  of  view 
of  both  workman  and  employer  and  in  the 
interests  of  both." 

37Dickson  v.  Scott  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  67,  30  Times  L.  R.  256,  7  B. 
W.  C.  C.  1007. 

In  Daily  News  v.  McNamara  (1913)  7 
B.  W.  C.  C.  (Eng.)  11,  an  employer  re- 
covered a  judgment  in  a  divisional  court 
for  the  full  amount  of  compensation  which 
he  was  obliged  to  pay  to  the  widow  of  a 
deceased  workman,  from  a  third  person 
whose  negligence  caused  the  death  of  the 
workman. 

88  Fellow  workmen  through  whose  negli- 
gence another  workman  is  injured  are  in- 
cluded in  the  words  "some  person  other 
than  the  employer,"  and  are  liable  for  the 
indemnity  provided  for  in  §  6.  Lees  v. 
Dunkerley  Bros.  (1910)  103  L.  T.  N.  S. 
(Eng.)  467,  55  Sol.  Jo.  44.  And  see  Bate 
v.  Worsey  [1912]  W.  C.  Rep.  (Eng.)  194, 
5  B.  W.  C.  C.  276. 

39  Cory  v.  France   [1911]   1  K.  B.   (Eng.) 
114,  80  L.  J.  K.  B.  N.  S.  341,  103  L.  T.  N. 
S.  649,  27  Times  L.  R.  18,  55  Sol.  Jo.  10, 
11  Asp.  Mar.  L.  Cas.  499. 

40  A    firm    of    stevedores    is    not    entitled 
to    be   indemnified   by    a    colliery    company 
for  the  compensation  which  they  are  com- 
pelled to  pay  to  one  of  their  workmen  on 
account  of  injuries  received  by  him,  caused 
by    the    brakes    on    one    of    the   company's 
wagons    being    insufficient    to    control    the 
wagon  as  it  was  returned  down  a  gradient 
up  which  it  had  been  drawn  in  order  to  be 
emptied    in    the    vessel,    the    company    not 
being    responsible    for    the    unusual    strain 
to  which  the  brakes  were  put  in  descending 
the   gradient,  which   was  greater   than   the 
wagons   were   subjected   to   while   employed 
on  the  company's  -own  business.     Kemp  v. 
Darngavil   Coal   Co.    [1909]    S.   C.   1314,  46 
Scot.  L.  R.  939;  Caledonian  R.  Co.  v.  War- 
wick  (1897)  25  R.  (H.  L.)   1,  35  Scot.  L.  R. 
54,  followed.     Elliott  v.  Hall    (1885)    L.  R. 
15  Q.  B.  Div.  (Eng.)  315,  54  L.  J.  Q.  B.  N. 
S.    518,   34    Week.    Rep.    16,    distinguished. 
Lord  Pearson  observed:     "The  accident  hap- 
pened  during   the   time   when    the   haulage 
contract  was  suspended,  and  during  the  ful- 
filment of  the  contract  of  loading,  to  which 


WORKMEN  IN  THE  SEA  SERVICE. 


103 


ty"  does  not  mean  that  the  court  must 
determine  judicially  that  there  is  a  legal 
liability;  it  is  sufficient  that  such  liabil- 
ity is  alleged.41  Compensation  paid  by 
the  employer  after  receiving  notice  of 
the  accident  and  of  the  claim,  but  before 
any  other  proceedings  had  been  taken, 
may  be  recovered  by  the  employer  from 
the  "other  person."  *2 

An  employer  who  has  paid  compen- 
sation for  .the  death  of  an  employee  may 
recover  indemnity  from  the  person 
whose  negligence  caused  the  injury,  al- 
though the  dependent  to  whom  the  com- 
pensation was  paid  was  an  illegitimate 
daughter  and  would  not  of  herself  have 
any  cause  of  action  against  the  negli- 
gent person.43 

In  an  action  in  rem  against  a  German 
vessel  brought  by  the  owners  of  an  Irish 
vessel  injured  by  a  collision  between  the 
two,  the  owners  of  the  latter  vessel 
cannot  include  in  damages  the  amount 
paid  a  seaman  for  compensation  for  in- 
juries for  fright  before  the  collision 
took  place.44  An  employer  is  entitled 
to  recover  as  indemnity  the  costs  of  the 
compensation  proceedings,  as  well  as 
the  compensation  awarded.45  Where  the 
employer  seeks  indemnity  against  a  third 
person  whose  negligence  caused  the  in- 


jury for  which  the  employer  is  liable 
for  compensation,  the  court  of  appeal 
will  not  interfere  if  there  is  some  evi- 
dence to  support  the  finding  that  the 
third  person  was  guilty  of  negligence.46 
In  an  action  for  indemnity  under  the 
act,  notice  under  rule  19  must  be  served, 
although  the  defendant  was  a  party  to 
the  compensation  proceedings.47  But  an 
employer  may,  if  he  chooses,  bring  an 
action  for  indemnity  under  §  6,  subsec. 
2,  independently  of  the  general  rules  as 
to  third  party  procedure.48 

IX.  Application  to  workmen  in  the  sea 
service  (§  7)  . 

a.  Text  of  §  7. 

Section  7  (1)  This  act  shall  apply  to 
masters,  seamen,  and  apprentices  to  the 
sea  service  and  apprentices  in  the  sea- 
fishing  service,  provided  that  such  per- 
sons are  workmen  within  the  meaning  of 
this  act,  and  are  members  of  the  crew  of 
any  ship  registered  in  the  United  King- 
dom, or  of  any  other  British  ship  or  ves- 
sel of  which  the  owner,  or  (if  there  is 
more  than  one  owner)  the  managing  own- 
er, or  manager  resides  or  has  his  princi- 
pal place  of  business  in  the  United  King- 


the  defenders  were  not  parties,  and  with 
which  they  have  no  concern." 

An  employer  who  has  paid  compensation 
to  a  servant  who  was  kicked  by  a  horse 
belonging  to  a  third  person  whose  servant 
brought  the  horse  upon  the  employer's 
premises  and  left  it  there  unattended  can- 
not recover  contribution  against  the  third 
person,  since  the  negligence  of  such  third 
person  cannot  be  considered  the  natural 
and  proximate  cause  of  the  injury  to  the 
employer's  servant.  Bradley  v.  Wallaces 
[1913]  3  K.  B.  (Eng.)  629,  82  L.  J.  K.  B. 
N.  S.  1074,  109  L.  T.  N.  S.  281,  29  Times 
L.  R.  705,  [1913]  W.  N.  239,  [1913]  W. 
C.  &  Ins.  Rep.  620,  6  B.  W.  C.  C.  706. 

Driving  a  motor  car  with  a  defective 
hooter  is  not  such  negligence  as  to  render 
the  driver  liable  to  indemnify  the  employer 
of  the  driver  of  a  cart  whose  horse  was 
frightened  by  the  motor  car,  where  the 
county  court  judge  found  that  the  absence 
of  a  proper  hooter  was  not  the  cause  of 
the  accident.  Lankester  v.  Miller-Hether- 
ington  (1910)  4  B.  W.  C.  C.  (Eng.)  80. 

41  Page  v.  Burtwell  [1908]  2  K.  B.  (Eng.) 
758,   77   L.  J.   K.   B.  N.   S.   1061,  99   L.   T. 
N.  S.  542,  125  L.  T.  Jo.  336,  1  B.  W.  C.  C. 
267. 

42  Thompson    v.    North    Eastern    Marine 
Engineering  Co.  [1903]  1  K.  B.  (Eng.)  428, 
72   L.   J.   K.  B.  N.   S.   222,   88   L.   T.  N.   S. 
239,  19  Times  L.  R.  206. 

43  Smith's   Dock  Co.   v.   Readhead    [1912] 
2  K.  B.    (Eng.)    323,  81   L.  J.  K.   B.   N.   S. 
808,   106  L.  T.   N.   S.  843,  28  Times  L.  R. 
L.R.A.1916A. 


397,  [1912]  W.  C.  Rep.  217,  5  B.  W.  C.  C. 
449. 

44  The  Rigel  (1912;  Adm.)  106  L.  T.  N.  S. 
(Eng.)  648,  [1912]  W.  N.  56,  28  Times 
L.  R.  251,  12  Asp.  Mar.  L.  Cas.  192,  L.  R. 
[1912]  P.  99,  81  L.  J.  Prob.  N.  S.  86. 

« Great  Northern  R.  Co.  v.  Whitehead 
(1902)  18  Times  L.  R.  (Eng.)  816. 

46Cutsforth  v.  Johnson  [1913]  W.  C.  & 
Ins.  Rep.  (Eng.)  131,  6  B.  W.  C.  C.  28,  108 
L.  T.  N.  S.  138. 

47  Howard   v.   Driver    (1903)    5   W.   C.   C. 
(Eng.)    153. 

Where  both  the  undertakers  and  a  con- 
tractor with  them  are  made  respondents 
to  a  claim  for  compensation  under  the  act, 
and  the  contractor  is  found  liable  to  pay 
compensation,  a  claim  for  indemnity  can- 
not be  made  in  the  arbitration  by  the 
undertakers  against  the  contractor  under 
rule  23  (2)  of  the  workmen's  compensation 
rules  1898,  unless  the  notice  prescribed  by 
rule  19  has  been  given.  Applebv  v.  Horse- 
ley  Co.  [1899]  2  Q.  B.  (Eng.)  521,  80  L.  T. 
N.  S.  853,  68  L.  J.  Q.  B.  N.  S.  892,  47  Week. 
Rep.  614,  15  Times  L.  R.  410. 

48  Nettleingham  v.  Powell  [1913]  3  K.  B. 
(Eng.)   209,  82  L.  J.  K.  B.  N.  S.  911,  108 
L.  T.  N.  S.  912,  29  Times  L.  R.  578,  57  Sol. 
Jo.   593,    [1913]    W.   N.   182,    [1913]    W.  C. 
&  Ins.  Rep.  424,  6  B.  W.  C.  C.  479,  affirm- 
ing   the    divisional    court    [1913]    1    K.    B. 
(Eng.)    113,   [1912]   W.  N.  278,  82  L.  J.  K. 
B.  N.  S.  54,  108  L.  T.  N.  S.  219,  29  Times 
L.  R.  88,  6  B.  W.  C.  C.  262. 


104 


WORKMEN'S  COMPEX SATIOX. 


dom,  subject  to  the  following  modifica- 
tions : — 

(a)  The  notice  of  accident  and  claim 
for  compensation  may,  except  where  the 
person  injured  is  the  master,  be  served 
on  the  master  of  the  ship  as  if  he  were 
the   employer,    but   where   the   accident 
happened  and  the  incapacity  commenced 
on  board  the  ship  it  shall  not  be  neces- 
sary to  give  any  notice  of  the  accident; 

(b)  In  the  case  of  the  death  of  the 
master,  seaman,  or  apprentice,  the  claim 
for  compensation  shall  be  made  within 
six  months  after  news  of  the  death  has 
been  received  by  the  claimant; 

(c)  Where  an  injured  master,  seaman, 
or  apprentice  is  discharged  or  left  be- 
hind   in    a   British    possession    or    in    a 
foreign    country,    deposition    respecting 
the  circumstances  and  nature  of  the  in- 
jury  may   be   taken   by   any   judge   or 
magistrate  in  the  British  possession,  and 
by   any   British   consular   officer   in   the 
foreign  country,  and  if  so  taken  shall 
be  transmitted  by  the  person  by  whom 
they  are  taken  to  the  board  of  trade,  and 
such  depositions  or  certified  copies  there- 
of shall,  in  any  proceedings  for  enforc- 
ing the  claim,  be  admissible  in  evidence 
as  provided  by  §§  691  and  695  of  the 
merchant  shipping  act  1894,  and  those 
sections  shall  apply  accordingly; 

(d)  In  the  case  of  the  death  of  a  mas- 
ter, seaman,  or  apprentice,  leaving  no  de- 
pendents, no  compensation  shall  be  pay- 
able, if  the  owner  of  the  ship  is,  under 
the  merchant  shipping  act  1894,  liable 
to  pay  the  expenses  of  burial; 

(e)  The  weekly  payment  shall  not  be 
payable  in  respect  of  the  period  during 
which  the  owner  of  the  ship  is,  under  the 
merchant  shipping  act  1894,  as  amended 
by  any  subsequent  enactment,  or  other- 
wise,  liable  to   defray  the   expenses  of 
maintenance  of  the  injured  master,  sea- 
man, or  apprentice; 

(f)  Any  sum  payable  by  way  of  com- 
pensation by  the  owner  of  a  ship  under 
this  act  shall  be  paid  in  full,  notwith- 
standing anything  in  §  503  of  the  mer- 


chant shipping  act  1894  (which  relates 
to  the  limitation  of  a  shipowner's  lia- 
bility in  certain  cases  of  loss  of  life,  in- 
jury, or  damage),  but  the  limitation  on 
the  owner's  liability  imposed  by  that 
section  shall  apply  to  the  amount  re- 
coverable by  way  of  indemnity  under 
the  section  of  this  act  relating  to  reme- 
dies both  against  employer  and  stranger, 
as  if  the  indemnity  were  damages  for 
loss  of  life  or  personal  injury; 

(g)  Subsections  (2)  and  (3)' of  §  174 
of  the  merchant  shipping  act  1894  (which 
relates  to  the  recovery  of  wages  of  sea- 
men lost  with  their  ship)  shall  apply 
as  respects  proceedings  for  the  recovery 
of  compensation  by  dependents  of  mas- 
ters, seamen,  and  apprentices  lost  with 
their  ships  as  they  apply  with  respect 
to  proceedings  for  the  recovery  of  wages 
due  to  seamen  and  apprentices;  and  pro- 
ceedings for  the  recovery  of  compensa- 
tion shall  in  such  a  case  be  maintainable 
if  the  claim  is  made  within  eighteen 
months  of  the  date  at  which  the  ship  is 
deemed  to  have  been  lost  with  all  hands : 

(2)  This  act  shall  not  apply  to  such 
members  of  the  crew  of  a  fishing  vessel 
as    are   remunerated   by   shares   in   the 
profits  or  the  gross  earnings  of  the  work- 
ing of  such  vessel. 

(3)  This  section  shall  extend  to  pilots 
to  whom  part  X.  of  the  merchant  ship- 
ping act  1894  applies,  as  if  a  pilot  when 
employed  on  any  such  ship  as  aforesaid 
were   a   seaman  and   a  member  of  the 
crew. 

[This  section  is  entirely  new.] 

It.  Proceedings  under  this  section  in 
general. 

The  act  has  no  application  outside  of 
the  territorial  limits  of  the  United  King- 
dom except  as  it  is  expressly  given  in 
§  7.49  And  this  section  does  not  apply 
unless  the  ship  is  registered  in  the 
j  United  Kingdom.50 

The  county  court  judge  or  other  arbi- 
j  trator  has  no  jurisdiction  over  an  appli- 
cation for  compensation  to  an  appren- 


49  A  firm  of  English  contractors  are  not 
liable  for  compensation  in  respect  to  the 
death  of  a  workman  engaged  in  working 
for  them  in  the  island  of  Malta.  Tomalin 
v.  Pearson  [1909]  2  K.  B.  (Eng.)  61,  78 
L.  J.  K.  B.  N.  S.  863,  100  L.  T.  X.  S.  685, 
25  Times  L.  R.  477,  2  B.  W.  C.  C.  1. 

A  workman  lost  in  the  Bay  of  Biscay 
while  on  his  way  to  work  at  Teneriffe  is 
not  within  the  act.  Schwartz  v.  India 
Rubber,  Gutta  Percha  &  Teleg.  Works  Co. 
[1912]  2  K.  B.  (Eng.)  299,  [1912]  W.  N. 
98,  28  Times  L.  R.  331,  81  L.  J.  K.  B.  N. 
S.  780,  [1912]  W.  C.  Rep.  190,  106  L.  T. 
N.  S.  706,  5  B.  W.  C.  C.  390. 
L.K.A.19]6A. 


A  charwoman  taken  by  a  French  woman 
to  do  work  for  her  in  France,  and  injured 
while  in  that  country,  is  not  within  the 
purview  of  the  act,  where  there  is  nothing 
to  show  that  the  parties  intendel  their 
contract  to  be  controlled  by  the  lex  loci 
contractus.  Hicks  v.  Maxton  (1907;  C.  C.) 
124  L.  T.  Jo.  (Eng.)  135,  1  B.  W.  C.  C. 
150. 

50  Where  the  registration  of  r  ship  was 
canceled  a  few  days  before  she  sailed,  with 
a  view  to  the  sale  of  the  ship  to  foreigners, 
a  seaman  who  sailed  on  the  ship  is  not 
within  the  protection  of  the  act.  Mortimer 
v.  Wisker  [1914]  3  K.  B.  (Eng.)  699,  30 


WORKMEN  IN  THE  SEA  SERVICE. 


105 


tice  who  was  serving  on  board  a  ship, 
where  the  articles  of  apprenticeship  are 
still  running.61  Payments  made  to  an 
injured  seaman  under  the  merchant  ship- 
ping acts  are  not  to  be  regarded  in  fixing 
compensation  to  be  paid  subsequently 
to  the  period  during  which  the  ship- 
owner is  liable  under  such  acts  for  the 
expenses  and  maintenance  of  the  injured 
seaman,  as  $  7  (1)  (e)  is  intended  only 
to  prevent  the  overlapping  of  the  two 
acts.82  But  if  the  shipowners  are  not 
liable  for  the  hospital  expenses  paid  by 
them,  such  expenses  must  be  regarded 
in  fixing  the  amount  of  compensation.53 
The  lapse  of  twelve  months  during 
which  a  ship  has  not  been  heard  of 
(after  which,  under  §  174  of  the  mer- 
chant shipping  act  1894,  she  is  deemed 


to  have  been  lost  with  all  hands)  is  not 
a  condition  precedent  to  a  claim  for 
compensation  under  the  workmen's  com- 
pensation act,  where,  by  the  ordinary 
rules  of  evidence,  a  seaman  would  be 
deemed  to  have  been  lost  at  sea  with 
his  ship.54 

c.  Persons  in  sea  service  excluded  from 
§  7  (§  7,  subsec.  2) . 

It  is  clear  that  a  member  of  the  crew 
of  a  fishing  vessel  who  receives  as  his 
remuneration  a  share  of  the  profits  of 
the  catch  is  excluded  from  the  provisions 
of  the  act.55  And  notwithstanding  he  re- 
ceives a  regular  weekly  wage,  he  is  not 
within  the  statute,  if  he  also  receives  a 
share  of  the  profits.56  But  it  has  been 
held  that  in  cases  where  the  share  of  the 


Times  L.  R.  592,  [1914]  W.  N.  281,  137 
L.  T.  Jo.  211,  83  L.  J.  K.  B.  N.  S.  1245,  111 
L.  T.  N.  S.  732,  7  B.  W.  C.  C.  494. 

51  Turner  v.  The  Haulwen   [1915]   W.  C. 
&  Ins.  Rep.   (Eng.)   50,  8  B.  W.  C.  C.  242. 
This    decision    was    based    on    the    express 
terms  of  §  7  (1)    (d),  that  the  weekly  pay- 
ments shall  not  be  payable  in  respect  of  a 
period   during  which   the   owner   of   a   ship 
is    liable    to    defray    the    expense    of    the 
maintenance   of  the   injured  apprentice. 

52  No  deduction  ought  to  be  made  from 
the  amount  of  compensation  to  an  injured 
seaman,    in    respect    to    the   cost    of    main- 
tenance   in    a    foreign    hospital,    for    which 
the   shipowners   are   liable   under   the   mer- 
chant   shipping    acts,    where    he    asks    for 
compensation    only    from    the    date    of    his 
return    to    England.      McDermott    v.    The 
Tintoretto    [1910]    W.   N.    (Eng.)    274,    55 
Sol.  Jo.  124   [1911]  A.  C.  35,  80  L.  J.  K.  B. 
N.  S.  161,  103  L.  T.  N.  S.  769,  27  Times  L. 
R.  149,  11  Asp.  Mar.  L.  Cas.  515,  4  B.  W. 
C.  C.  123,  48  Scot.  L.  R.  728. 

53Kempson  v.  The  Moss  Rose  (1910)  4 
B.  W.  C.  C.  (Eng.)  101.  This  decision  was 
rendered  prior  to  the  decision  of  the  House 
of  Lords  in  McDermott  v.  The  Tintoretto 
(Eng.),  which  reversed  the  court  of  appeal 
in  the  position  which  that  court  had  taken. 
However,  it  would  appear  that  the  cases 
are  fundamentally  different,  and  that  the 
decision  of  the  House  of  Lords  is  not  neces- 
sarily conclusive  of  the  case  at  bar. 

54  Maginn  v.  Carlingford  Lough  S.  S.  Co. 
(1909)    43   Ir.   Law   Times,   123. 

55  The  mate  or  first  fisherman  of  a  steam- 
trawler,    whose    sole    remuneration    Avas    a 
certain    proportion    of    the    net    balance    of 
the    gross    price    of    the    fish    caught    on    a 
trip    after    deducting    certain    specified    ex- 
penses,   which    did    not    include    the    wages 
of   other   members   of   the   crew,   is   within 
the    exception    of    §    7,    subsec.    2.      Gill    v. 
Aberdeen    Steam    Trawling    &    Fishing    Co. 
[1908]    S.   C.   (Scot.)    328. 

An  engineer  upon  a  steam  fishing  boat, 
who  was  paid  by  a  share  in  the  profits 
upon  a  guaranty  that  they  should  never 
amount  to  less  than  a  certain  sum,  is  ex- 
L.R.A.1916A. 


cepted  from  the  provisions  of  the  act.  Ad- 
miral Fishing  Co.  v.  Robinson  [1910]  1 
K.  B.  (Eng.)  540,  79  L.  J.  K.  B.  N.  S.  551, 
102  L.  T.  N.  S.  203,  26  Times  L.  R.  299,  54 
Sol.  Jo.  305,  3  B.  W.  C.  C.  247. 

A  "share-hand"  on  a  trawler  is  not  en- 
titled to  compensation  for  injuries,  although 
he  was  at  the  time  engaged  in  work  on 
one  of  the  employer's  steam  cutters  for 
which  he  received  a  fixed  sum.  Whelan 
v.  Great  Northern  Steam  Shipping  Co. 
[1909]  W.  N.  (Eng.)  135,  78  L.  J.  K.  B. 
N.  S.  860,  100  L.  T.  N.  S.  913,  25  Times 
L.  R.  619. 

Members  of  fishing  crews,  who  receive 
sleeping  room  and  provision  and  a  certain 
wage  per  week,  and  a  further  share  on  the 
net  profits  of  the  voyage,  are  members  of 
the  crew  of  a  fishing  vessel  remunerated  by 
shares  in  the  profit  of  the  working  of  such 
vessel  within  §  7,  subdiv.  2,  of  the  act. 
Tindall  v.  Great  Northern  S.  S.  Fishing  Co. 
(1912)  56  Sol.  Jo.  (Eng.)  720,  5  B.  W.  C. 
C.  667. 

56  A  boatswain  on  a  steam  fishing  traw- 
ler, who  was  remunerated  by  maintenance 
and  poundage,  dependent  upon  the  profits 
of  the  fishing  expedition,  is  excluded  from 
the  act  by  §  7,  subsec.  2,  although  he  also 
received  wages.  Costello  v.  The  Pigeon 
[1913]  A.  C.  (Eng.)  407,  82  L.  J.  K.  B.  N. 
S.  873,  108  L.  T.  N.  S.  927,  29  Times  L.  R. 
595,  57  Sol.  Jo.  609,  [1913]  W.  N.  187,  50 
Scot.  L.  R.  976,  [1913]  W.  C.  &  Ins.  Rep. 
410,  6  B.  W.  C.  C.  480. 

Members  of  a  crew  of  a  fishing  vessel, 
who  received  in  addition  to  their  regular 
wages  a  share  of  stocker,  which  is  money 
received  from  the  sale  of  the  tails  of  fish, 
roes,  shellfish,  etc.,  and  liver  money,  which 
is  a  share  of  the  proceeds  of  the  livers 
cleaned  from  the  fish,  received  a  part  of 
the  gross  earnings  of  the  working  of  the 
vessel,  and  are  not  entitled  to  compen- 
sation for  injuries  under  §  7,  subdiv.  2,  of 
the  act.  Burman  v.  Zodiac  Steam  Fishing 
Co.  [1914]  3  K.  B.  (Eng.)  1039,  30  Times 
L.  R.  651,  83  L.  J.  K.  B.  N.  S.  1683,  [1914] 
W.  N.  329,  7  B.  W.  C.  C.  767. 

If  a  member  of  the  crew  of  a  fishing  ves- 


106 


WORKMEN'S  COMPENSATION. 


profits  made  by  the  fisherman  is  so  small 
as  to  be  negligible,  the  county  court 
judge  may  find  that  he  is  not  remuner- 
ated by  a  share  of  the  gross  profits,  so 
as  to  be  excluded  from  the  statute.67 

A  flatboat  engaged  in  carrying  barrels 
of  fish  from  the  fishing  station  to  ves- 
sels, and  empty  barrels  back  from  the 
vessels  to  the  station,  is  not   a  fishing 
boat  within  §  7,  subsec.  2,  of  the  act,  so 
as   to  exclude   a   workman   on  •  the   boat  j 
who  received  a  share  of  the  profits  from  j 
the  protection  of  the  statute.58 

X.  Compensation  for  industrial  dis- 
eases   (   §   8,   Sched.   III.) . 

a.  Text  of  act  relative  thereto. 
1.  Text  of  §  8. 

Section  8  (1)  Where— 

(i)  the   certifying   surgeon   appointed 
under  the  factory  and  workshop  act  1901  ! 
for  the  district  in  which  a  workman  is  , 
employed  certifies  that  the  workman  is  , 
suffering  from  a  disease  mentioned  in  the 
third  schedule  to  this  act,  and  is  there- 
by disabled  from  earning  full  wages  at 
the  work   at   which  he   was   employed; 
or — 

(ii)  A  workman  is,  in  pursuance  of 
any  special  rules  or  regulations  made 
under  the  factory  and  workshop  act  1901, 
suspended  from  his  usual  employment  on 
account  of  having  contracted  any  such 
disease;  or — 

(iii)   The    death    of    a    workman    is  j 
caused  by  any  such  disease;  and  the  dis- 
ease is  due  to  the  nature  of  any  employ- 


ment in  which  the  workman  was  em- 
ployed at  any  time  within  the  twelve 
months  previous  to  the  date  of  the  dis- 
ablement or  suspension,  whether  under 
one  or  more  employers,  he  or  his  depend- 
ents shall  be  entitled  to  compensation 
under  this  act  as  if  the  disease  or  such 
suspension  as  aforesaid  were  a  personal 
injury  by  accident  arising  out  of  and  in 
the  course  of  that  employment,  subject 
to  the  following  modifications: — 

(a)  The    disablement    or    suspension 
shall  be  treated  as  the  happening  of  the 
accident ; 

(b)  If  it  is  proved  that  the  workman 
has  at  the  time  of  entering  the  employ- 
ment   wilfully    and    falsely    represented 
himself  in   writing   as   not   having   pre- 
viously suffered  from  the  disease,  com- 
pensation shall  not  be  payable; 

(c)  The  compensation  shall  be  recover- 
able  from   the   employer   who   last    em- 
ployed   the    workman    during    the    said 
twelve  months  in  the  employment  to  the 
nature  of  which  the  disease  was  due: 

Provided  that — 

(i)  The  workman  or  his  dependents, 
if  so  required,  shall  furnish  that  em- 
ployer with  such  information  as  to  the 
names  and  addresses  of  all  the  other 
employers  who  employed  him  in  the  em- 
ployment during  the  said  twelve  months 
as  he  or  they  may  possess,  and,  if  such 
information  is  not  furnished,  or  is  not 
sufficient  to  enable  that  employer  to  take 
proceedings  under  the  next  following 
proviso,  that  employer  upon  proving  that 
the  disease  was  not  contracted  whilst  the 


eel,  as  a  matter  of  fact,  received  a  share 
of  the  money  received  from  the  sale  of 
fish  tails,  roes,  shellfish,  etc.,  and  of  the 
liver  money,  he  received  a  share  of  the 
gross  earnings  of  the  vessel,  although  in 
the  running  agreement  such  as  is  required 
by  the  merchants  shipping  act  1894,  §  400, 
the  column  in  the  agreement  headed  "Share 
of  fishing  profits"  was  struck  through  in 
the  space  opposite  the  applicant's  name  to 
show  that  it  did  not  apply  to  him.  Ibid. 

A  deck  hand  on  hoard  a  steam  trawler, 
who  was  paid  weekly  wages  and  received 
in  addition  a  share  of  "stocker"  or  inedible 
fish,  was  "remunerated  by  a  share  in  the 
profits  or  gross  earnings,"  and  his  depend- 
ents are  not  entitled  to  compensation  for 
his  death,  although  at  the  time  that  the 
vessel  was  lost  with  all  on  board,  no 
stocker  had  been  taken.  Rtephenson  v. 
Rossall  Steam  Fishing  Co  (1915)  84  L.  J. 
K.  B.  N.  S.  (Eng.)  677,  112  L.  T.  N.  S.  891, 
[1915]  W.  C.  &  Ins.  Rep.  121,  [1915]  W. 
N.  70,  8  B.  W.  C.  C.  209. 

Although  the  written  contract  of  employ- 
ment of  a  deck  hand  on  a  fishing  vessel 
stated  only  that  the  remuneration  was  to 
be  20s.  a  week  and  board  and  lodging,  it 
L.R.A.1916A. 


may  nevertheless  be  inferred  that  he  was 
to  receive  a  share  of  the  stocker  or  inedible 
fish,  where,  by  the  custom  of  the  port,  a 
deck  hand  was  entitled  to  such  shares,  and 
the  hand  in  question  had  received  a  share  of 
the  stocker  upon  the  preceding  trip.  Ibid. 

The  decision  of  the  House  of  Lords  in 
Costello  v.  The  Pigeon  (Eng.)  must  be 
considered  as  overruling  tire  decision  of  the 
court  of  session,  in  which  it  was  held  that 
a  member  of  a  fishing  crew  who  was  paid 
a  weekly  wage  and  received  in  addition  a 
certain  sum  per  pound  sterling  on  the 
gross  value  of  the  fish  was  not  remunerated 
by  a  share  of  the  profits  or  gross  earnings, 
so  as  to  be  excluded  from  the  benefits  of 
the  act.  Colquhoun  v.  Woolfe  [1912]  S.  C. 
1190,  49  Scot.  L.  R.  911,  [1912]  W.  C.  Rep. 
343. 

57  Williams  v.  The  Duncan  [1914]  3  K. 
B.  (Eng.)  1039,  30  Times  L.  R.  651,  [1914] 
W.  N.  329,  83  L.  J.  K.  B.  N.  S.  1683,  7  B. 
W.  C.  C.  767 ;  McCord  v.  The  City  of  Liver- 
pool [1914]  3  K.  B.  (Eng.)  1037,  30  Times 
L.  R.  651,  [1914]  W.  N.  329,  83  L.  J.  K.  B. 
N.  S.  1683,  7  B.  W.  C.  C.  767. 

SSJamieson  v.  Clark  (1909)  46  Scot.  L. 
R.  73,  [1909]  S.  C.  132,  2  B.  W.  C.  C.  228. 


COMPENSATION  FOR  INDUSTRIAL  DISEASES. 


107 


workman  was  in  his  employment  shall 
not  be  liable  to  pay  compensation ;  and — 

(ii)  If  that  employer  alleges  that  the 
disease  was  in  fact  contracted  whilst  the 
workman  was  in  the  employment  of  some 
other  employer,  and  not  whilst  in  his 
employment,  he  may  join  such  other  em- 
ployer as  a  party  to  the  arbitration;  and 
if  the  allegation  is  proved,  that  other 
employer  shall  be  the  employer  from 
whom  the  compensation  is  to  be  recover- 
able; and — 

(iii)  If  the  disease  is  of  such  a  nature 
as  to  be  contracted  by  a  gradual  process, 
any  other  employers  who  during  the  said 
twelve  months  employed  the  workman  in 
the  employment  to  the  nature  of  which 
the  disease  was  due  shall  be  liable  to 
make  to  the  employer  from  whom  com- 
pensation is  •  recoverable  such  contribu- 
tions as,  in  default  of  agreement,  may  be 
determined  in  the  arbitration  under  this 
act  for  settling  the  amount  of  the  com- 
pensation ; 

(d)  The  amount  of  the  compensation 
shall  be  calculated  with  reference  to  the 
earnings  of  the  workman  under  the  em- 
ployer from  whom  the  compensation  is 
recoverable ; 

(e)  The  employer  to  whom  notice  of 
the  death,  disablement,  or  suspension  is 
to  be  given  shall  be  the  employer  who 
last  employed  the  workman  during  the 
said  twelve  months  in  the  employment  to 
the   nature   of   which   the    disease   was 
due,  and  the  notice  may  be  given  not- 
withstanding that  the  workman  has  vol- 
untarily left  his  employment. 

(f)  If  an  employer  or  a  workman  is 
aggrieved  by  the  action  of  a  certifying 
or  other  surgeon  in  giving  or  refusing  to 
give  a  certificate  of  disablement,  or  in 
suspending    or    refusing    to    suspend    a 
workman  for  the  purposes  of  this  sec- 
tion, the  matter  shall,  in  accordance  with 
regulations   made    by   the    Secretary   of 
State,  be  referred  to  a  medical  referee, 
whose  decision  shall  be  final. 

(2)  If  the  workman  at  or  immediately 
before  the  date  of  the  disablement  or 
suspension  was  employed  in  any  process 
mentioned  in  the  second  column  of  the 
third  schedule  to  this  act,  and  the  dis- 
ease contracted  is  the  disease  in  the  first 
column  of  that  schedule  set  opposite  the 
description  of  the  process,  the  disease, 
except  where  the  certifying  surgeon  cer- 
tifies that  in  his  opinion  the  disease  was 
not  due  to  the  nature  of  the  employment, 
shall  be  deemed  to  have  been  due  to  the 
nature  of  that  employment,  unless  the 
employer  proves  the  contrary. 

(3)  The  Secretary  of  State  may  make 
rules  regulating  the  duties  and  fees  of 
L.R.A.1916A. 


certifying  and  other  surgeons  (including 
dentists)  under  this  section. 

(4)  For  the  purpose  of  this  section  the 
date  of  disablement  shall  be  such  date 
as  the  certifying  surgeon  certifies  as  the 
date    on    which    the    disablement    com- 
menced, or,   if  he   is   unable   to   certify 
such  a  date,  the  date  on  which  the  cer- 
tificate is  given :    Provided  that — 

(a)  Where  the  medical  referee  allows 
an  appeal  against  a  refusal  by  a  certify- 
ing surgeon  to  give  a  certificate  of  dis- 
ablement, the  date  of  disablement  shall 
be  such  date  as  the  medical  referee  may 
determine : 

(b)  Where   a   workman   dies   without 
having  obtained  a  certificate  of  disable- 
ment, or  is  at  the  time  of  death  not  in 
receipt  of  a  weekly  payment  on  account 
of  disablement,  it  shall  be  the  date  of 
death. 

(5)  In  such  cases,  and  subject  to  such 
conditions  as  the  Secretary  of  State  may 
direct,  a  medical  practitioner  appointed 
by  the  Secretary  of  State  for  the  pur- 
pose shall  have  the  powers  and  duties 
of  a  certifying  surgeon  under  this  sec- 
tion, and  this  section  shall  be  construed 
accordingly. 

(6)  The  Secretary  of  State  may  make 
orders   for  extending  the  provisions  of 
this  section  to  other  diseases  and  other 
processes,  and  to  injuries  due  to  the  na- 
ture of  any  employment  specified  in  the 
order,    not    being   injuries    by    accident, 
either  without  modification  or  subject  to 
such  modifications  as  may  be  contained 
in  the  order. 

(7)  Where,  after  inquiry  held  on  the 
application  of  any  employers  or  work- 
men engaged  in  any  industry  to  which 
this   section   applies,  it   appears   that   a 
mutual  trade  insurance  company  or  so- 
ciety for  insuring  against  the  risks  un- 
der this  section  has  been  established  for 
the  industry,  and  that  a  majority  of  the 
employers  engaged  in  that  industry  are 
insured  against  such  risks  in  the  com- 
pany or  society,  and  that  the  company 
or    society    consents,    the    Secretary    of 
State  may,  by  provisional  order,  require 
all  employers  in  that  industry  to  insure 
in   the   company  or   society   upon   such 
terms    and    under   such    conditions    and 
subject  to  such  exceptions  as  may  be  set 
forth  in  the  order.    Where  such  a  com- 
pany or  society  has  been  established,  but 
is  confined  to  employers  in  any  particular 
locality  or  of  any  particular  class,  the 
Secretary  of  State  may  for  the  purposes 
of  this  provision  treat  the  industry,  as 
carried  on  by  employers  in  that  locality 
or  of  that  class,  as  a  separate  industry. 

(8)  A  provisional  order  made  under 


108 


WORKMEN'S  COMPENSATION. 


this  section  shall  be  of  no  force  what- 
ever unless  and  until  it  is  confirmed  by 
Parliament,  and  if,  while  the  bill  con- 
firming any  such  order  is  pending  in 
either  House  of  Parliament,  a  petition  is 
presented  against  the  order,  the  bill  may 
be  referred  to  a  select  committee,  and 
the  petitioner  shall  be  allowed  to  appear 
and  oppose  as  in  the  case  of  private 
bills,  and  any  act  confirming  any  provi- 
sional order  under  this  section  may  be 
repealed,  altered,  or  amended  by  a  pro- 
visional order  made  and  confirmed  in 
like  manner. 

(9)  Any  expenses  incurred  by  the  Sec- 
retary of  State  in  respect  of  any  such 
order,   provisional   order,   or  confirming 
bill  shall  be  defrayed  out  of  moneys  pro- 
vided by  Parliament. 

(10)  Nothing  in  this  section  shall  af- 
fect the  rights  of  a  workman  to  recover 
compensation  in  respect  of  a  disease  to 
which  this  section  does  not  apply,  if  the 
disease  is  a  personal  injury  by  accident 
within  the  meaning  of  this  act. 

[This  section  is  new,  and  enlarges  ma- 
terially the  scope  of  the  act.] 

2.  Text  of  third  schedule. 

The  third  schedule,  mentioned  in  $  8 
of  the  act,  is  given  below. 

DESCRIPTION  OF  DISEASE  AND  PROCESS. 

Anthrax — Handling  of  wool,  hair,  bris- 
tles, hides,  and  skins. 

Lead  poisoning  or  its  sequelse — Any 
process  involving  the  use  of  lead  or  its 
preparations  or  compounds. 


Mercury  poisoning  or  its  sequelae — 
Any  process  involving  the  use  of  mer- 
cury or  its  preparations  or  compounds. 

Phosphorus  poisoning  or  its  sequelae — 
Any  process  involving  the  use  of  phos- 
phorus or  its  preparations  or  compounds. 

Arsenic  poisoning  or  its  sequelae — Any 
process  involving  the  use  of  arsenic  or 
its  preparations  or  compounds. 

Ankylostomiasis— Mining. 

Where  regulations  or  special  rules 
made  under  any  act  of  Parliament  for 
the  protection  of  persons  employed  in 
any  industry  against  the  risk  of  con- 
tracting lead  poisoning  require  some  or 
all  of  the  persons  employed  in  certain 
processes  specified  in  the  regulations  or 
special  rules  to  be  periodically  examined 
by  a  certifying  or  other  surgeon,  then, 
in  the  application  of  this  schedule  to  that 
industry,  the  expression  "process"  shall, 
unless  the  Secretary  of  State  otherwise 
directs,  include  only  the  processes  so 
specified. 

b.  In  general. 

Apart  from  §  8,  the  act  has  no  opera- 
tion except  where  there  is  an  accident,59 
and  this  section  does  not  have  a  retro- 
active effect,60  and  cannot  apply  to  sea- 
men contracting  industrial  diseases  while 
at  sea.61 

There  can  be  no  recovery  under  §  8 
unless  it  is  established  that  the  employ- 
ment caused  the  disease,62  and  that  the 
disease  caused  the  workman's  death  or 


59  If    there    has    been    no    accident,    the 
workman's   right  to   compensation,   if   any, 
must  be  based  on  §  8  of  the  act.     Chuter 
v.  Ford  [1915]  2  K.  B.  (Eng.)  113,  84  L.  J. 
K.  B.  N.  S.  703,  [1915]  W.  C.  &  Ins.  Rep. 
104,  [1915]  W.  N.  53,  31  Times  L.  R.  187, 
8  B.  W.  C.  C.  160. 

60  In  Greenhill  v.  The  Daily  Record  (1909. 
Ct.  of  Sess.)   46  Scot.  L.  R.  483,  the  court 
refused  to  entertain   a  claim   made   by   the 
widow  of  a  workman  who  had  left  his  em- 
ployment   before    the    date    when    the    act 
came  into  force,  and  had  died  after  it  took 
effect,  from  an  "industrial  disease"  to  which 
it  was  applicable. 

61  Curtis  v.  Black   [1909]   2  K.  B.   (Eng.) 
529,   78  L.  J.  K.  B.  N.   S.  1022,  100  L.  T. 
N.  S.  977,  25  Times  L.  R.  621,  53  Sol.  Jo. 
576.      Cozens-Hardy,   M.   R.,   observed    that 
a    workman    who    had    contracted    an     in- 
dustrial disease,  lead  poisoning  in  this  case, 
in  order  to   make  a  claim,  must  procure  a 
certificate  from  the  certifying  surgeon  ap- 
pointed   under    the    factory    and    workshop 
act   "for   the    district    in    which   he   is   em- 
ployed;"   there    can    be    no    such    surgeon 
where     the     disease     was     contracted     at 
sea. 

62  It  is  not  enough   for  the  applicant  to 
L.R.A.1916A. 


prove  that  the  deceased  employee  had  been 
employed  in  a  lead  process  within  twelve 
months,  and  that  he  died  of  lead  poison- 
ing; it  must  be  shown  that  the  disease  was 
caused  by  the  employment.  Dean  v.  Rubian 
Art  Pottery  Co.  [1914]  2  K.  B.  (Eng.) 
213,  83  L.  J.  K.  B.  N.  S.  799,  110  L.  T.  N. 
S.  594,  30  Times  L.  R.  283,  58  Sol.  Jo.  302, 
[1914]  W.  N.  45,  [1914]  W.  C.  &  Ins.  Rep. 
147,  7  B.  W.  C.  C.  209. 

Compensation  cannot  be  allowed  where 
there  is  no  evidence  that  the  workman's 
tendency  to  an  industrial  disease  was  due 
to  a  previous  attack  of  the  disease  while 
in  the  employment  of  the  master,  as  op- 
posed to  a  physical  susceptibility  to  the 
disease.  Jones  v.  New  Brynmally  Collierv 
Co.  [1912]  W.  C.  Rep.  (Eng.)  283,  5  B. 
W.  C.  C.  375,  106  L.  T.  N.  S.  524. 

Where  a  medical  referee  has  certified 
that  a  miner  was  suffering  from  nystagmus, 
but  that  it  was  not  due  to  mining,  the 
sheriff  substitute  must  allow  the  matter 
to  go  on  so  that  the  workman  may  show 
if  he  can  that  the  disease  of  nystagmus, 
from  which  he  is  certified  to  be  suffering, 
really  arose  from  his  employment,  and 
did  not  arise  from  other  causes.  M'Ginn 
v.  Udston  Coal  Co.  [1912]  S.  C.  668,  49 


COMPENSATION  FOR  INDUSTRIAL  DISEASES. 


109 


disability ;  6S  and  the  workman  has  the 
burden  of  proof  of  showing  that  the  lia- 
bility to  a  recurrence  of  the  disease  is 
due  to  the  accident,  and  not  to  a  con- 
stitutional predisposition  to  the  partic- 
ular disease.64 

The  certificate  of  a  certifying  surgeon 
that  a  workman  is  suffering  from  an  in- 
dustrial disease  does  not  require  to  be 
obtained  before  the  initiation  of  proceed- 
ings, but  may  be  obtained  and  produced 
in  the  course  of  the  proceedings ;  65  and 
the  date  at  which  the  certifying  surgeon 
finds  the  workman  to  have  been  disabled 
may  be  subsequent  to  the  time  of  the 
termination  of  the  workman's  employ- 
ment with  the  employers.66 

In  the  absence  of  a  contract  of  employ- 
ment there  can  be  no  liability  for  con- 
tribution under  $  8 ;  67  but  a  workman 
is  not  necessarily  barred  from  compensa- 
tion because  he  falsely  stated  in  his  ap- 
plication for  employment  that  he  had  not 
used  white  lead  when  employed  by  other 
persons,  where  it  appeared  that  the  em- 
ployer was  not  prejudiced  thereby  in  se- 
curing contribution  from  the  other  em- 
ployers.68 

c.  Meaning  of  phrase   "at  or  immedi- 
ately before." 

The  phrase  "immediately  before"  as 
used  in  §  8,  subsec.  2,  refers  to  a  se- 
quence of  time,  not  to  a  sequence  of  em- 
ployment. Consequently,  a  miner  who 
leaves  the  employment  of  the  mine  own- 
er for  a  reason  not  connected  with  the 
disease  cannot  procure  compensation  up- 


on the  ground  that  eight  months  after 
he  left  the  employment  he  was  disabled 
by  nystagmus.69  So,  where  a  workman 
had  worked  for  a  few  days  in  an  em- 
ployment involving  the  use  of  lead,  and 
after  leaving  the  employment  caught 
cold  and  died  of  pneumonia  about  a 
month  after  he  had  left  the  employment, 
the  employment  was  not  "at  or  imme- 
diately before,"  the  death,  within  the 
meaning  of  §  8  subsec.  2.70 

d.  Presumption  as  to  cause  of  disease. 

The  presumption  referred  to  in  $  8, 
subsec.  2,  is  that  the  disablement  was  due 
to  the  nature  of  the  scheduled  employ- 
ment irrespective  of  the  date  or  place 
at  which  the  disease  was  contracted.71 
A  workman  engaged  as  a  surface  la- 
borer at  a  colliery  is  not  entitled  to  a 
|  statutory  presumption  that  the  disease 
of  nystagmus,  from  which  he  is  suffer- 
ing, was  due  to  the  nature  of  the  employ- 
ment.72 

c.  Contribution    by    other   employers. 

Compensation  for  an  industrial  disease 
is  recoverable  in  the  first  instance  from 
the  employer  who  had  last  employed  the 
workman  during  the  period,  however 
short  that  period  of  employment  may 
have  been.1™  In  seeking  contribution 
from  prior  employers,  there  is  no  obliga- 
tion on  the  part  of  the  employers  to 
prove  that  the  disease  was  contracted 
while  the  claimant  was  in  the  service 
of  the  previous  employers.74 

Under  §  8,  subsec.  1  (c)   (iii),  the  ar- 


Scot.  L.  R.  531,  [1912]  W.  C.  Rep.  134,  5 
B.  W.  C.  C.  559. 

63Haylett  v.  Vigor  [1908]  2  K.  B.  (Eng.) 
837,  77  L.  J.  K.  B.  N.  S.  1132,  24  Times 
L.  R.  885,  72  Sol.  Jo.  741,  99  L.  T.  N.  S. 
74. 

64Darroll  v.  Glasgow  Iron  &  Steel  Co. 
[1913]  S.  C.  387,  50  Scot.  L.  R.  226,  [1913] 
W.  C.  &  Ins.  Rep.  80,  6  B.  W.  C.  C.  354. 

65  Taylor  v.  Burnham    [1909]    S.  C.   704, 

46  Scot.  L.  R.  482. 

66  Russell  v.  Keary   (1915)   52  Scot.  L.  R. 
447,  8  B.  W.  C.  C.  410. 

67  Pears  v.  Gibbons   [1913]   W.  C.  &  Ins. 
Rep.  (Eng.)  469,  6  B.  W.  C.  C.  722. 

68  Taylor   v.   Burnham    [1910]    S.  C.   705, 

47  Scot.  L.  R.  643,  3  B.  W.  C.  C.  569. 
69M'Taggart  v.  Barr   (1914)    52  Scot.  L. 

R.  125,  8  B.  W.  C.  C.  376. 

70  An  employment  which  terminated  on 
April  19th  cannot  be  said  to  have  been 
employment  "at  or  immediately  before" 
May  15th.  Dean  v.  Rubian  Art  Pottery 
Co.  [1914]  2  K.  B.  (Eng.)  213,  83  L.  J. 
K.  B.  N.  S.  799,  110  L.  T.  N.  S.  594,  30 
Times  L.  R.  283,  58  Sol.  Jo.  302,  [1914] 
W.  N.  45,  [1914]  W.  C.  &  Ins.  Rep.  147,  7 
B.  W.  C.  C.  209. 
L.R.A.1916A. 


71  Clancy   v.   Watson    (1915)    52  Scot.   L. 
R.    279,    [1915]    W.   C.    &    Ins.   Rep.    40,   8 
B.  W.  C.  C.  391. 

72  Scullion    v.    Cadzow    Coal    Co.    [1914] 
S.  C.  36,  [1913]  2  Scot.  L.  T.  271,  51  Scot. 
L.  R.  39,   [1914]   W.  C.  &  Ins.  Rep.  129,  7 
B.   W.   C.    C.   833.      The   basis   of   this   de- 
cision was  that  the  expression  "the  process 
of  mining"  was  not  equivalent  to  the  ex- 
pression   "employment   on,   in,   or   about   a 
mine,"  and  that  if  the  legislature  had  in- 
tended    that     the     statutory     presumption 
should    apply    in    the    case    of    a    surface 
worker,  the  latter  phrase  would  have  been 
used  in  the  statute. 

73  Merry  v.  M'Gowan   (1914)   52  Scot.  L. 
R.  30,  8  B.  VV.  C.  C.  344.     In  this  case,  the 
miner  had  been  in  the  last  employment  but 
two  days. 

74  Where,  upon   an   application   for   com- 
pensation by  an  employee  who  was  suffer- 
ing from  mercurial  poisoning,  the  employers 
disputed  their  liability  on  the  ground  that 
the    disease    was    not    contracted    in    their 
service,  and  served  third-party  notices  on 
other  employers,  claiming  contribution  from 
them    in    respect    of    compensation    on    the 
ground    that    the    disease    was    of    such    a 


110 


WORKMEN'S  COMPENSATION. 


bitrator  must  determine  what,  under  all 
the  facts  of  the  case,  is  a  fair  and  prop- 
er contribution  for  the  former  employ- 
ers to  make  to  the  compensation  which 
the  last  employer  had  to  pay,  and  he  is 
not  to  limit  himself  to  merely  calculating 
the  number  of  days  during  which  the 
man  was  in  the  respective  employ- 
ments,75 unless  there  is  no  special  cir- 
cumstance to  show  that  the  disease  had 
in  reality  been  greatly  accelerated  by  the 
conduct  of  some  particular  employer.76 
A  builder's  laborer  who  had  contracted 
eczematous  ulceration  from  contact  with 
cement  and  lime  while  in  the  employ- 
ment of  the  respondent,  and  who  was 
voluntarily  paid  compensation  for  the 
time  he  was  disabled,  cannot,  over  a  year 
thereafter,  when  he  is  in  the  employment 
of  other  employers  and  the  disease  re- 
appears, recover  compensation  from  the 


respondent,   there   being   no    suspensory 
agreement,  and  no  suspensory  award.77 

/.  Functions  of  certifying  surgeons  and 
medical  referees. 

The  sole  function  of  the  certifying 
surgeon,  and  of  the  medical  referee  on 
appeal,  is  to  determine  whether  the  work- 
man is  suffering  from  a  scheduled  dis- 
ease, and  is  thereby  disabled  from  earn- 
ing full  wages  in  his  employment,  and, 
subject  to  the  provisions  of  §  8,  subsec. 
4,  to  fix  the  date  on  which  disablement 
commenced.78  A  certificate  by  the  medi- 
cal referee  allowing  an  appeal  by  the 
workman  from  the  refusal  of  the  certi- 
fying surgeon  to  give  the  workman  a 
certificate  of  disablement  in  respect  of 
a  disease  falling  within  the  statute,  and 
fixing  the  date  of  the  disablement,  is 
conclusive.79  But  the  county  court 


nature  as  to  be  contracted  by  gradual 
process,  and  that  the  workman  had  been 
employed  by  the  other  employers  within 
twelve  months  of  his  disablement,  the  de- 
fendant employers  need  not  allege  that  the 
disease  had  been  actually  contracted  at 
any  particular  date,  or  prove  that  it  was 
contracted  while  the  claimant  was  in  the 
service  of  the  previous  employers.  Mal- 
linder  v.  Moores  [1912]  2  K.  B.  (Eng.) 
124,  81  L.  J.  K.  B.  N.  S.  714,  106  L.  T.  N. 
S.  487,  [1912]  W.  C.  Rep.  257,  [1912]  W. 
N.  97,  5  B.  W.  C.  C.  362.  The  ground  of 
this  decision  was  that  the  county  court 
judge  had  misdirected  himself  in  that  he 
considered  the  case  to  fall  within  §  8  (1) 
(c)  (ii),  which  applies  where  the  employer 
claims  that  the  disease  was  wholly  con- 
tracted in  another  employment.  The  disease, 
mercurial  poisoning,  was  within  the  pro- 
visions of  §  8  (1)  (c)  (iii),  and  the  em- 
ployment with  the  third  person  had  been 
within  the  twelve  months. 

75  In  Barron  v.  Seaton  Burn  Coal  Co. 
[1915]  1  K.  B.  (Eng.)  756,  112  L.  T.  N.  S. 
897,  31  Times  L.  R.  199,  84  L.  J.  K.  B.  N.  S. 
682,  [1915]  W.  C.  &  Ins.  Rep.  132,  [1915] 
W.  N.  70,  59  Sol.  Jo.  315,  8  B.  W.  C.  C.  218, 
the  court  of  appeal  allowed  an  appeal  from 
an  award  of  the  county  court  judge  in  the 
case  of  a  miner  who  was  suffering  from 
nystagmus,  and  who,  during  the  twelve 
months  preceding  the  award,  had  worked 
for  five  different  employers  engaged  in 
mining.  The  county  court  judge  ordered 
each  of  the  five  employers  to  contribute 
in  proportion  to  the  period  during  which 
the  man  was  employed  with  them.  One 
of  the  employers  claimed  that  the  working 
arrangements  at  his  colliery  were  so  good 
and  so  far  superior  to  those  of  the  other 
collieries  that  it  was  not  right  that  the 
other  employers  should  bear  simply  a 
ratable  proportion  of  the  total  sum,  having 
regard  only  to  the  number  of  days  or  weeks 
in  which  the  man  was  employed  at  their 
colliery.  The  county  court  judge,  however, 
was  of  the  opinion  that  the  provision  in 
L.R.A.1916A. 


question  was  intended  to  obviate  the  neces- 
sity of  making  such  inquiries  in  the  case 
of  a  disease  acquired  gradually.  The  court 
of  appeal,  however,  took  the  contrary  view.. 

76  Lees  v.  Waring  (1909  C.  C.)  127  L.  T. 
Jo.  (Eng.)  498,  2  B.  W.  C.  C.  474. 

TVTimpson  v.  Mowlem  (1915)  112  L.  T.. 
N.  S.  (Eng.)  885,  8  B.  W.  C.  C.  178.  The 
court  pointed  out  that  the  workman  should 
have  proceeded  against  his  last  employers,, 
and  that  they  had  power  to  call  in  the 
respondent  and  make  out,  if  they  could, 
that  the  industrial  disease  was  really  con- 
tracted when  the  workman  was  in  the 
respondent's  employ,  and  not  while  in  the 
employment  of  the  last  employers. 

78  The  sheriff  as  arbitrator  should  refuse 
to  accept  the  report  of  a  medical  referee 
to  whom  the  matter  was  referred  under 
§  8  (1)  (f),  where  the  latter,  subject  to  a 
note  appended,  dismissed  the  appeal.  Win- 
ters v.  Addie  &  Sons'  Collieries  [1911]  S 
C.  1174,  48  Scot.  L.  R.  940. 

A  medical  referee  to  whom  a  case  is 
referred  under  §  8  (1)  (f)  of  the  act  has 
no  power  to  dismiss  an  appeal  by  the 
employers  from  an  award,  with  the  restric- 
tion that  the  applicant  ''is  now  able  to- 
resume  his  ordinary  work."  Garrett  v. 
Waddell  [1911]  S.  C.  1168,. 48  Scot.  L.  R. 
937. 

Where  a  certifying  surgeon  had  given  a 
certificate  that  a  workman  was  suffering 
from  an  industrial  disease,  but  in  the  cer- 
tificate fixed  the  commencement  of  the  dis- 
ablement at  the  time  of  the  examination,, 
which,  under  the  circumstances  of  the  case, 
prevented  the  workman  from  taking  pro- 
ceedings for  compensation  under  the  act, 
the  workman  is  aggrieved  under  §  8  subsec. 
1  (iii)  (f),  and  has  a  right  of  appeal  to 
the  medical  referee.  Birks  v.  Stafford  Coal 
&  I.  Co.  [1913]  3  K.  B.  (Eng.)  686,  109  L. 
T.  N.  S.  290,  82  L.  J.  K.  B.  N.  S.  1334, 
[1913]  W.  N.  238,  57  Sol.  Jo.  729,  6  B. 
W  C  C  617 

79Chuter  v.  Ford  [1915]  2  K.  B.  (Eng.) 
113,  84  L.  J.  K.  B.  N.  S.  703,  [1915]  W.  C.. 


WORKMEN  UNDER  THE  CROWN. 


Ill 


judge  is  entitled  to  ignore  a  certificate 
of  a  certifying  surgeon  to  the  effect  that 
a  bookbinder  was  suffering  from  lead 
poisoning,  but  that  there  were  none  of 
the  usual  symptoms,  and  that  the  disease 
could  only  be  inferred  from  the  man's 
history  of  the  case.80  A  medical  referee 
should  not  sit  with  the  county  court 
judge  as  assessor  upon  an  issue  upon 
which  he  had  already  given  his  opinion 
as  medical  referee.81 

XI.  Application  to  ivorkmen  under  the 

Crown   (§  9)  . 

a.   Text  of  §   9. 

Section  9  (1)  This  act  shall  not  apply 
to  persons  in  the  naval  or  military  serv- 
ice of  the  Crown,  but  otherwise  shall 
apply  to  workmen  employed  by  or  under 
the  Crown  to  whom  this  act  would  apply 
if  the  employer  were  a  private  person: 

Provided,  that  in  the  case  of  a  person 
employed  in  the  private  service  of  the 
Crown,'  the  head  of  that  department  of 
the  Royal  Household  in  which  he  was 
employed  at  the  time  of  the  accident 
shall  be  deemed  to  be  his  employer. 

(2)  The  Treasury  may,  by  warrant 
laid  before  Parliament,  modify  for  the 
purposes  of  this  act  their  warrant  made 
under  §  1  of  the  superannuation  act  1887, 
and,  notwithstanding  anything  in  that 
act,  or  any  such  warrant,  may  frame 
schemes  with  a  view  to  their  being  certi- 
fied by  the  registrar  of  friendly  societies 
under  this  act. 

[This  section  is  the  same  as  §  8  of  the 
original  act,  except  that  the  proviso  in 
subsec.  1  is  new.] 

XII.  Appointment  and  remuneration  of 
arbitrators  and  medical  referees  (§ 
10). 

a.  Text  of  §  1O. 

Section  10  (1)  The  Secretary  of  State 
may  appoint  such  legally  qualified  medi- 
cal practitioners  to  be  medical  referees 
for  the  purpose  of  this  act  as  he  may, 
with  the  sanction  of  the  Treasury,  de- 
termine, and  the  remuneration  of,  and 
other  expenses  incurred  by,  medical  ref- 

&  Ins.  Rep.  104,  [1915]  W.  N.  53,  31 
Times  L.  R.  187,  8  B.  W.  C.  C.  160.  It 
was  further  held  that  the  certificate  of  the 
medical  referee  was  not  irregular  and  in- 
valid by  reason  of  the  omission  of  the 
statement  that  the  workman  was  disabled 
by  the  disease  from  earning  full  wages  at 
the  work  at  which  he  was  employed. 

SOMapp  v.  Straker  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  98,  7  B.  W.  C.  C.  18. 

SiWallis  v.  Soutter  [1915]  W.  N.   (Eng.} 
68,  59   Sol.  Jo.   285,    [1915]    W.   C.   &    Ins. 
Rep.  113,  8  B.  W.  C.  C.  130. 
L.R.A.1916A. 


erees  under  this  act  shall,  subject  to  reg- 
ulations made  by  the  Treasury,  be  paid 
out  of  moneys  provided  by  Parliament. 

Where  a  medical  referee  has  been  em- 
ployed as  a  medical  practitioner  in  con- 
nection with  any  case  by  or  on  behalf 
of  an  employer  or  workman,  or  by  any 
insurers  interested,  he  shall  not  act  as 
medical  referee  in  that  case. 

(2)  The  remuneration  of  an  arbitrator 
appointed  by  a  judge  of  county  courts 
under  the  second  schedule  to  this  act 
shall  be  paid  out  of  moneys  provided  by 
Parliament  in  accordance  with  regula- 
tions made  by  the  Treasury  [new.] 

XIII.  Detention  of  ships  whose  owners 
are  liable  for  compensation  (§  11). 

a.   Text  of  §  11. 

Section  11  (1)  If  it  is  alleged  that  the 
owners  of  any  ship  are  liable  as  such 
owners  to  pay  compensation  under  this 
act,  and  at  any  time  that  ship  is  found 
in  any  port  or  river  of  England  or  Ire- 
land, or  within  3  miles  of  the  coast  there- 
of, a  judge  of  any  court  of  record  in  Eng- 
land or  Ireland  may,  upon  its  being 
shown  to  him,  by  any  person  applying 
in  accordance  with  the  rules  of  the  court, 
that  the  owners  are  probably  liable  as 
such  to  pay  such  compensation,  and  that 
none  of  the  owners  reside  in  the  United 
Kingdom,  issue  an  order  directed  to  any 
officer  of  customs  or  other  officer  named 
by  the  judge,  requiring  him  to  detain 
the  ship  until  such  time  as  the  own- 
ers, agent,  master,  or  consignee  there- 
of have  paid  such  compensation,  or  have 
given  security,  to  be  approved  by  the 
judge,  to  abide  the  event  of  any  proceed- 
ings they  may  be  instituted  to  recover 
such  compensation,  and  to  pay  such  com- 
pensation and  costs  as  may  be  awarded 
thereon;  and  any  officer  of  customs  or 
other  officer  to  whom  the  order  is  direct- 
ed shall  detain  the  ship  accordingly. 

(2)  In  any  legal  proceeding  to  recover 
such  compensation,  the  person  giving  se- 
curity shall  be  made  defendant,  and  the 
production  of  the  order  of  the  judge, 
made  in  relation  to  the  security,  shall  be 
conclusive  evidence  of  the  liability  of  the 
defendant  to  the  proceeding. 

(3)  Section  692  of  the  merchant  ship- 
ping act  1894  shall  apply  to  the  detentio,n 
of  a  ship  under  this  act  as  it  applies  to 
the  detention  of  a  ship  under  that  act 
and,  if  the  owner  of  a  ship  is  a  corpo- 
ration, it  shall  for  the  purposes  of  this 
section  be  deemed  to  reside  in  the  United 
Kingdom  if  it  has  an  office  in  the  United 
Kingdom  at  which  service  of  writs  can 
be  effected  [new]. 


112 


WORKMEN'S  COMPENSATION. 


b.  Proceedings  under  this  section. 

An  appeal  from  an  order  of  the  county 
court  judge  detaining  a  vessel  under  § 
11  lies  to  the  provisional  court,  and  not 
to  the  court  of  appeal.82 

XIV.  Reports   of  injuries  J§    12). 
a.  Text  of  §  12. 

Section  12  '(1)  Every  employer  in  any 
industry  to  which  the  Secretary  of  State 
may  direct  that  this  action  shall  apply 
shall,  on  or  before  such  day  in  every 
year  as  the  Secretary  of  State  may  di- 
rect, send  to  the  Secretary  of  State  a 
correct  return  specifying  the  number  of 
injuries  in  respect  of  which  compen- 
sation has  been  paid  by  him  under  this 
act  during  the  previous  year,  and  the 
amount  of  such  compensation,  together 
with  such  other  particulars  as  to  the 
compensation  as  the  Secretary  of  State 
may  direct,  and  in  default  of  complying 
with  this  section  shall  be  liable,  on  con- 
viction under  the  summary  jurisdiction 
acts,  to  a  fine  not  exceeding  £-5. 

(2)  Any  regulations  made  by  the  Sec- 
retary of   State   containing   such   direc- 
tions as  aforesaid  shall  be  laid  before 
both  Houses  of  Parliament  as  soon  as 
may  be  after  they  are  made  [new]. 
XV.  Definition  clauses    (§  13)  . 
a.  Text  of  §  13. 

Section  13.  In  this  act,  unless  the  con- 
text otherwise  requires, — 

"Employer"  includes  any  body  of  per- 
sons, corporate  or  unincorporate,  and 
the  legal  personal  representative  of  a  de- 
ceased employer,  and  where  the  serv- 
ices of  a  workman  are  temporarily  lent 
or  let  on  hire  to  another  person  by  the 
person  with  whom  the  workman  has  en- 
tered into  a  contract  of  service  or  ap- 
prenticeship, the  latter  shall,  for  the  pur- 
poses of  this  act,  be  deemed  to  continue 
to  be  the  employer  of  the  workman 
whilst  he  is  working  for  that  other  per- 
son; 

"Workman"  does  not  include  any  per- 
son employed  otherwise  than  by  way  of 
manual  labor  whose  remuneration  ex- 
ceeds £250  a  year,  or  a  person  whose 
employment  is  of  a  casual  nature,  and 
who  is  employed  otherwise  than  for  the 
purposes  of  the  employer's  trade  or  busi- 
ness, or  a  member  of  a  police  force,  or 
an  outworker,  or  a  member  of  the  em- 
ployer's family  dwelling  in  his  house, 
but,  save  as  aforesaid,  means  any  per- 


82Fanagotis  v.  The  Pontiac   [1912]   1  K. 
B.   (Eng.)    74   [1911]   W.  N.  221,  28  Times 
L.  R.  63,  56  Sol.  Jo.  71. 
L.R.A.1916A. 


son  who  has  entered  into  or  works  under 
a  contract  of  service  or  apprenticeship 
with  an  employer,  whether  by  way  of 
manual  labor,  clerical  work,  or  otherwise, 
and  whether  the  contract  is  expressed 
or  implied,  is  oral  or  in  writing; 

Any  reference  to  a  workman  who  has 
been  injured  shall,  where  the  workman 
is  dead,  include  a  reference  to  his  legal 
personal  representative  or  to  his  de- 
pendents or  other  person  to  whom  or  for 
whose  benefit  compensation  is  payable; 

"Dependents"  means  such  of  the  mem- 
bers of  the  workman's  family  as  were 
wholly  or  in  part  dependent  upon  the 
earnings  of  the  workman  at  the  time  of 
his  death,  or  would  but  for  the  incapaci- 
ty due  to  the  accident  have  been  so 
dependent,  and  where  the  workman,  be- 
ing the  parent  or  grandparent  of  an  il- 
legitimate child,  leaves  such  a  child  so 
dependent  upon  his  earnings,  or,  being 
an  illegitimate  child,  leaves  a  parent 
or  grandparent  so  dependent  upon  his 
earnings,  shall  include  such  an  illegiti- 
mate child  and  parent  or  grandparent 
respectively; 

"Member  of  a  family"  means  wife  or 
husband,  father,  mother,  grandfather, 
grandmother,  stepfather,  stepmother, 
son,  daughter,  grandson,  granddaughter, 
stepson,  stepdaughter,  brother,  sister, 
half-brother,  half-sister; 

"Ship,"  "vessel,"  "seaman,"  and  "port" 
have  the  same  meanings  as  in  the  mer- 
chant shipping  act  1894; 

"Manager,"  in  relation  to  a  ship, 
means  the  ship's  husband  or  other  per- 
son to  whom  the  management  of  the  ship 
is  intrusted  by  or  on  behalf  of  the 
owner ; 

"Police  force"  means  a  police  force  to 
which  the  police  act  1890,  or  the  police 
(Scotland)  act  1890,  applies,  the  City  of 
London  Police  Force,  the  Royal  Irish 
Constabulary,  and  the  Dublin  Metropol- 
itan Police  Force; 

"Outworker"  means  a  person  to  whom 
articles  or  materials  are  given  out  to 
be  made  up,  cleaned,  washed,  altered,  or- 
namented, finished,  or  repaired,  or  adapt- 
ed for  sale,  in  his  own  home  or  on  other 
i  premises  not  under  the  control  or  man- 
agement of  the  person  who  gave  out  the 
materials  or  articles; 

The  exercise  and  performance  of  the 
powers  and  duties  of  a  local  or  other 
public  authority  shall,  for  the  purpose 
of  this  act,  be  treated  as  the  trade  or 
business  of  the  authority; 

"County  court,"  "judge  of  the  county 
court,"  "registrar  of  the  county  court," 
"plaintiff,"  and  "rules  of  court,"  as  re- 
spects Scotland,  mean  respectively  sher- 


WHO  ARE  EMPLOYERS. 


113 


iff  court,  sheriff,  sheriff  clerk,  pursuer, 
and  act  of  sederunt. 

[Section  13  takes  the  place  of  subsec. 
2  of  $  7  of  the  act  of  1897,  but  contains 
the  definition  of  a  number  of  terms  not 
used  in  the  earlier  act.] 

b.  Who  are  "employers." 

For  American  Cases  defining  this  term, 
see  post,  245. 

Public  bodies  may  be  employers;  such 
as  the  central  body  constituted  under  § 
1  of  the  unemployed  workmen  act  1905, 
which  has  provided  temporary  work  for 
a  workman ;  83  and  the  word  "employ- 
er" covers  the  Sydney  Harbor  Trust 
Commissioners.84  An  infant  employer  is 
liable  as  any  other  employer  under  the 
workman's  compensation  act  of  1908.85 

The  owners  of  a  ship  may  be  found  to 
be  the  "employers,"  of  a  workman  em- 
ployed in  weighing  a  cargo,  although  he 
had  been  selected  from  the  list  of  weigh- 
ers appointed  and  licensed  under  stat- 
utory authority,  where  it  appeared  that 


he  was  subject  to  the  control  and  direc- 
tion of  the  ship  foreman,  who,  if  dis- 
satisfied with  his  services,  could  stop  the 
work  and  send  for  another.86 

A  workman  who  has  been  receiving 
compensation  may,  upon  the  death  of 
the  employer,  and  the  neglect  or  refusal 
of  the  next  of  kin  to  take  out  letters, 
secure  the  appointment  of  an  adminis- 
trator so  as  to  be  able  to  enforce  his 
right  to  compensation,  since  the  work- 
man cannot  be  deprived  of  compensation 
merely  because  there  is  no  one  standing 
in  the  position  of  "employer."  87 

In  the  general  law  of  master  and  serv- 
ant, the  question  frequently  arises  as  to 
which  of  two  persons  is  the  employer  of 
a  workman  who  is  admittedly  a  serv- 
ant of  one  of  them.  Cases  of  this  char- 
acter, involving  compensation,  will  be 
found  in  the  note;  but  it  is  to  be  noted 
that  the  decisions  turn  on  principles  en- 
tirely independent  of  the  compensation 
act.88 

The  court  will  not  interfere  with  the 


83  Porton  v.  Central   (Unemployed)   Body 
for  London    [1908]    W.  N.    (Eng.)    242,  25 
Times  L.  R.   102;    Gilroy  v.  Makie    [1909] 
S.  C.  466,  46  Scot.  L.  R.  325. 

84  Re  Ryan   (1911)   11  New  South  Wales 
St.  Rep.  33. 

85  Re    Smith    (1911)    17    West    L.    Rep. 
(Can.)   550. 

86Wilmerson  v.  Lynn  &  H.  S.  S.  Co. 
[1913]  3  K.  B.  931,  (Eng.)  82  L.  J.  K.  B. 
N.  S.  1064,  109  L.  T.  N.  S.  53,  29  Times 
L.  R.  652,  57  Sol.  Jo.  700,  [1913]  W.  C.  & 
Ins.  Rep.  633,  6  B.  W.  C.  C.  542. 

87  Re    Byrne    (1910;    Prob.)    44    Ir.   Law 
Times,  98,  3  B.  W.  C.  C.  591. 

88  The  owners  of  a  threshing  machine  are 
the  employers  of  a  man  employed  by  them 
as  a  road  man  to  go  along  the  road  ahead 
of   the    thresher,   but   who    when    the    ma- 
chine   is   at   work   acts   as   trusser,   and   is 
paid  by  the  farmer,  and   was   so  at   work 
when  injured.     Reed  v.  Smith   (1910)   3  B. 
W.  C.  C.  (Eng.)  223. 

A  coal  trimmer,  although  employed  by 
an  agent  of  the  harbor  commissioners,  is 
in  the  employment  of  a  firm  of  shipping 
agents  who  act  as  managers  of  a  vessel 
being  loaded  with  coal  for  third  persons, 
where  the  trimmers  are  directly  under  the 
control  of  the  agents,  and  are  paid  from 
the  freight,  the  balance  of  which,  less 
charges,  is  sent  by  the  agents  to  the  own- 
ers of  the  vessel.  Gorman  v.  Gibson  [1909- 
10]  S.  C.  317,  47  Scot.  L.  R.  394. 

Shipowners  may  be  found  to  be  the  em- 
ployers of  a  workman  employed  to  assist 
in  mooring  ships,  although  he  was  engaged 
and  paid  by  a  stevedore,  where  it  appears 
that  the  owners  gave  the  money  to  the 
stevedore  instead  of  to  the  workman  as  a 
matter  of  convenience.  Pollard  v.  Goole  & 
H.  Steam  Towing  Co.  (1910)  3  B.  W.  C.  C. 
(Eng.)  360. 

Where  an  agreement  between  the  owners 
L.R.A.1916A.  8 


of  a  vessel  and  the  skipper  provided  that 
the  skipper  was  to  work  the  vessel  on  the 
best  paying  trade,  receiving  for  his  services 
two  thirds  of  all  the  freight  earned,  out  of 
which  he  was  to  pay  all  the  wages  for  the 
crew,  and  all  other  expenses  connected  with 
the  working  of  the  vessel,  remitting  to  the 
owner  the  remaining  one  third,  and  it  fur- 
ther provided  that  if  he  had  cause  to  give 
up  command  of  the  vessel,  he  was  to  advise 
the  owner,  and,  if  requested,  to  bring  the 
vessel  to  certain  ports  free  of  all  charges 
to  the  owner,  and  further  provided  for  his 
leaving  the  vessel  at  a  loading  port,  a  mate 
employed  by  the  skipper,  who  would  get  his 
full  wages  whether  the  vessel  earned  any 
freight  or  not,  may  be  found  to  be  under 
a  contract  of  service  with  the  owners. 
Kelly  v.  The  Miss  Evans  [1913]  2  I.  R.  385, 
47  Ir.  Law  Times,  155,  [1913]  W.  C.  &  Ins. 
Rep.  418,  6  B.  W.  C.  C.  916. 

The  mate  of  a  vessel  may  be  found  to 
be  in  the  employment  of  the  owners  where, 
by  the  contract  between  them  and  the  cap- 
tain, the  latter  made  all  contracts  for 
freight,  and  engaged  the  crew,  and  took  the 
vessel  where  he  wished,  and  the  owners 
paid  the  wages  of  the  crew  if  the  freight 
was  not  sufficient  therefor,  and  tonnage  and 
pilotage  expense  were  deducted  from  the 
gross  freights,  and  the  captain  took  two 
thirds  of  the  residue,  paying  thereout  all 
other  expenses.  The  Victoria  v.  Barlow 
(1911)  45  Ir.  Law  Times,  260,  5  B.  W.  C. 
C.  570. 

A  member  of  the  gang  engaged  in  un- 
loading sulphur  from  a  barge  is  not  an  em- 
ployee of  the  owner  of  the  sulphur,  where 
he  engaged  one  of  the  gang  to  supply  the 
labor  necessary,  and  that  one  engaged  the 
others  and  supplied  the  necessary  tools,  and 
the  money  received  was  divided  equally 
among  the  gang,  except  that  the  leader  re- 
ceived two  pennies  from  each  of  the  others, 


114 


WORKMEN'S  COMPENSATION. 


decision  of  the  county  judge  upon  ques- 
tions of  pure  fact,  such  as  whether  the 
respondent  was  the  employer  of  the  ap- 
plicant.89 

c.  "Contract  of  service." 

The    determination    of    the    question 


whether  a  contract  of  service  exists  be- 
tween the  workman  and  the  respondents 
depends  upon  general  principles,  rather 
than  upon  the  construction  of  the  com- 
pensation act.  There  can  be  no  compen- 
sation unless  such  a  contract  does  exist.90 
Nor,  in  the  absence  of  such  a  contract,  is 


the  owner  merely  directing  where  the  sul- 
phur should  be  placed.  Bobbey  v.  Crosbie 
(1915)  84  L.  J.  K.  B.  N.  S.  (Eng.)  856,  112 
L.  T.  N.  S.  900,  8  B.  W.  C.  C.  236. 

Where  a  mandatory  hires  workmen  in 
his  own  name,  without  disclosing  his  princi- 
pal, and  pays  them  with  his  own  money  or 
check,  he  is  liable  for  any  compensation 
to  which  they  may  be  entitled  because  of 
injuries  received  while  in  such  employment. 
Demers  v.  McCrae  (1911)  Rap.  Jud.  Quebec, 
40  S.  C.  123. 

89  Pollard  v.  Goole  &  H.  Steam  Towing 
Co.    (Eng.)    supra    (respondents  held  to  be 
employers  of  applicant). 

90  A    workman    who    was    injured    while 
at  work  in  the  labor  yard  of  a  charitable 
organization,  having  applied  there  for  aid, 
had    no    "contract    of    service."      Burns    v. 
Manchester  &  S.  Wesleyan  Mission   (1908) 
99  L.  T.  N.  S.  (Eng.)  579,  125  L.  T.  Jo.  336, 

1  B.  W.  C.  C.  305. 

There  is  no  contract  of  service  between 
a  dispensary  medical  officer  and  the  board 
of  poor  law  guardians,  who  appoint  him  to 
perform  the  statutory  duties  of  his  office. 
Murphy  v.  Enniscorthy  Guardians  [1908] 

2  I.  R.  609,  42  IT.  Law  Times,  246,  2  B.  W. 
C.  C.  291. 

There  is  no  contract  of  service  where 
a  taxicab  driver  takes  a  cab  from  the  own- 
er's yard  by  the  day,  and  pays  over  75  per 
cent  of  the  daily  receipts  to  the  owners,  and 
retains  25  per  cent,  less  the  price  of  his 
petrol.  Doggett  v.  Waterloo  Taxi -Cab  Co. 
[1910]  2  K.  B.  (Eng.)  336,  102  L.  T.  N.  S. 
874,  79  L.  J.  K.  B.  N.  S.  1085,  26  Times  L. 
R.  491,  54  Sol.  Jo.  541,  3  B.  W.  C.  C.  371; 
Bates-Smith  v.  General  Motor  Cab  Co. 
[1911]  A.  C.  (Eng.)  188,  80  L.  J.  K.  B.  N.  S. 
839,  27  Times  L.  R.  370,  4  B.  W.  C.  C. 
249. 

A  continuing  contract  within  the  meaning 
of  §  13  does  not  exist  between  a  farmer 
and  a  laborer  who  worked  by  the  day, 
and  came  and  went  as  he  pleased,  and  who 
occasionally  absented  himself  without  no- 
tice, so  as  to  render  the  farmer  liable  to 
compensation,  where,  when  the  workman 
presented  himself  for  work  on  the  morning 
of  the  day  on  which  he  was  injured,  he  was 
told  by  the  farmer  that  another  farmer  had 
asked  him  to  lend  him  a  man,  and  that  the 
workman  was  to  go  and  aid  the  second 
farmer  in  threshing  operations,  which  he 
did,  incurring  during  such  employment  the 
injuries  of  which  he  died.  Boswell  v.  Gil- 
bert (1909)  127  L.  T.  Jo.  (Eng.)  146,  2  B. 
W.  C.  C.  251. 

There  is  no  contract  of  employment  be- 
tween a  farmer  and  a  quarryman  who  some- 
times assisted  the  farmer  in  getting  in 
his  crops  in  the  evening,  and  who  received 
L.R.A.1916A. 


no  money  for  his  services,  but  the  farmer 
gave  him  beer  and  sometimes  a  supper  when 
the  work  was  over,  since,  if  this  was  a  con- 
tract of  employment,  it  would  have  been 
illegal  under  the  truck  act,  and  could  not 
constitute  a  "contract  of  service"  within 
the  meaning  of  §  13  of  the  workmen's  com- 
pensation act.  Kemp  v.  Lewis  [1914]  3 
K.  B.  (Eng.)  543,  [1914]  W.  N.  264,  137 
L.  T.  Jo.  213,  83  L.  J.  K.  B.  N.  S.  1535, 
111  L.  T.  N.  S.  699,  7  B.  W.  C.  C.  422. 

A  letter  fixer  has  a  contract  of  service 
with  a  firm  of  enamel  letter  makers  where 
he  frequently  obtained  work  from  them,  and 
was  in  the  habit  of  calling  regularly  at 
their  place  of  business  and  occasionally 
canvassed  among  shopkeepers  to  fix  letters 
in  behalf  of  the  firm,  and  was  paid  by  them 
in  respect  to  the  orders  he  received.  Taylor 
v.  Burnham  [1910]  S.  C.  705,  47  Scot.  L. 
R.  643,  3  B.  W.  C.  C.  569. 

Where  a  firm  of  fish  curers  entered  into  a 
contract  with  a  man  whereby  they  were  to 
furnish  him  with  a  flit  boat  of  which  the 
man  was  to  be  skipper  and  was  two  employ 
a  helper,  and  the  flit  boat  was  to  be  engaged 
in  carrying  barrels  of  fish  from  the  fish  sta- 
tions to  vessels,  and  empty  barrels  back, 
both  for  the  owners  and  for  other  curers, 
the  gross  profits  of  the  work  to  be  divided 
into  three  parts,  one  for  the  owners  and 
one  for  each  of  the  men,  and  when  there  was 
no  work  of  this  character  the  owners  were, 
so  far  as  possible,  to  furnish  other  work  on 
shore  for  the  men,  the  contract  was  one  of 
employment,  and  not  of  partnership. 
Jamieson  v.  Clark  (1909)  46  Scot.  L.  R.  73, 
[1909]  S.  C.  132,  2  B.  W.  C.  C.  228. 

Where  a  workman  engaged  in  quarrying 
stone  had  a  partner  with  whom  he  shared 
the  money  earned,  and  they  employed  and 
paid  five  or  six  men  to  work  with  them, 
and  were  paid  a  certain  sum  per  ton  for 
every  ton  of  ordinary  stone,  and  an  extra 
payment  for  every  ton  of  building  stone, 
and  the  quarry  owner's  manager  could  term- 
inate the  contract  with  him  at  any  time  by 
giving  him  reasonable  notice,  but  had  no 
power  to  dismiss  the  men  employed  by  him, 
except  by  terminating  the  agreement,  and 
the  workman  could  work  what  hours  he 
pleased,  and  was  not  obliged  to  work  at  all 
provided  a  sufficient  amount  of  stone  was 
sent  out,  but  had  to  obey  the  orders  of  re- 
spondent manager  as  to  the  place  where 
he  was  to  work  or  kind  of  stone  he  was  to 
send  out  if  such  orders  were  given,  and  all 
the  tools  used  by  the  party  were  the  prop- 
erty of  the  quarry  owners,  and  the  horse 
also  belonged  to  the  quarry  owners,  but  the 
workman  had  to  look  after  it  and  provide 
it  with  food,  the  county  court  judge  may 
find  that  the  workman  was  under  a  con- 


WHO  ARE  WORKMEN. 


115 


the  employer  liable  under  §  8  to  contri- 
butions to  subsequent  employers.90* 

d.  Who  are  "workmen." 
1.  In  general. 

For  American  decision  denning  this 
term,  see  post,  246. 

Under  the  definition  clause  of  the 
workman's  compensation  act  1897,  the 
term  "workman"  included  every  person 
who  was  engaged  in  an  employment  to 
which  the  act  applied,  "whether  by  way 
of  manual  labor  or  otherwise."  This 
description  "made  it  possible  for  a  man 
to  be  a  workman  within  the  meaning  of 
the  act,  although  he  might  not  be  en- 
gaged in  manual  labor," 91  but  it  was 
deemed  to  be  applicable  only  to  those 
classes  of  employees  whose  remunera- 
tion could  properly  be  designated  as 
"wages."  In  this  point  of  view  it  was 


held  in  one  case  that  the  certificated  man- 
ager of  a  coal  mine,  who  was  paid  a 
yearly  salary,  and  who,  although  his 
duties  required  his  presence  in  the  mine, 
was  not  required  to  engage  in  manual 
labor,  was  not  a  "workman."  92  In  an- 
other case  a  graduate  in  science,  who 
had  entered  the  employment  of  a  dye 
and  chemical  manufacturing  company, 
under  a  written  agreement  for  five  years' 
service,  and  upon  terms  with  regard  to 
salary,  commission  on  profits  of  inven- 
tions or  improvements  in  manufactur- 
ing discovered  by  him,  restrictions  as 
to  employment  after  the  termination  of 
his  engagement,  and  disclosure  of  mat- 
ters relating  to  the  business  of  the  com- 
pany and  his  own  researches,  was  de- 
clared not  to  be  a  "workman,"  although 
his  employment  involved  manual  labor 
on  his  part.93 


tract  of  service  within  the  meaning  of  the 
act.  Jones  v.  Penwyllt  Dinas  Silica  Brick 
Co.  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  394,  6 
B.  W.  C.  C.  492. 

An  old  man  employed  by  another  work- 
man, who  was  authorized  only  to  employ  a 
boy,  is  not  in  the  employment  of  the  em- 
ployer. M'Clelland  v.  Todd  (1909;  Record- 
er's Ct.)  43  Ir.  Law  Times,  75,  2  B.  W.  C.  C. 
472. 

In  the  absence  of  evidence  to  show  an 
express  hiring,  a  contract  of  employment 
will  not  be  presumed  between  a  hop  grower 
and  a  girl  of  seventeen,  who  accompanied 
and  assisted  her  aunt  in  picking  hops  for 
the  grower,  where  it  was  the  custom  for 
the  heads  of  family,  when  engaged  in  pick- 
ing hops,  to  take  the  entire  family  with 
them.  Richards  v.  Pitt  (1915)  84  L.  J.  K.  B. 
N.  S.  (Eng.)  1417. 

The  county  court  judge  may  find  that 
there  is  no  contract  of  service  between  the 
captain  of  a  canal  boat  and  the  owners, 
where  he  was  working  under  a  system 
whereby  he  took  two  thirds  of  the  gross 
receipts  of  voyages  in  one  direction,  and 
three  quarters  in  the  other,  paying  for  all 
labor  and  current  expenses  out  of  his  por- 
tion, and  he  had  power  to  refuse  any  cargo 
offered  by  the  owners  as  unremunerative, 
and  on  the  voyage  the  boat  was  absolutely 
under  his  control.  Beck  v.  Hill  &  Sons, 
(1915)  8  B.  W.  C.  C.  (Eng.)  592. 

See  also  the  cases  cited  in  note  14,  infra. 

90a  A  coach  builder  who,  after  the  ap- 
pointment of  a  trustee  to  wind  up  the  busi- 
ness, was  appointed  by  the  trustee  to  help 
in  the  winding  up,  and  spend  about  half  an 
hour  every  day  helping  the  trustee  in  su- 
pervising the  workmen,  paying  their  wages 
and  keeping  a  day  book,  is  not  under  a 
contract  of  service  with  the  trustee,  so  as 
to  render  the  latter  liable  to  contribution 
under  §  8  (1)  (c)  (iii.)  to  a  coach  painter 
for  whom  the  coach  builder  was  working 
when  he  contracted  lead  poisoning.  Pears 
v.  Gibbons  [1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
469,  6  B.  W.  C.  C.  722. 
L.R.A.1916A. 


91  Simpson  v.  Ebbw  Vale  Steel,  Iron  & 
Coal   Co.    [1905]    1   K.   B.    (Eng.)    453,   74 
L.  J.  K.  B.  N.  S.  347,  53  Week.  Rep.  390,  92 
L.  T.  N.  S.  282,  21  Times  L.  R.  209. 

92  Simpson   v.  Ebbw   Vale   Steel,  Iron   & 
Coal  Co.  (Eng.)  supra.    Collins,  M.  R.,  said: 
"The  popular  meaning  must  be  given  to  a 
definition    where    we    are    confronted    with 
such  an  expression  as  'wages,'  and  we  must 
interpret   the  act   as   applying  to   persons 
whom,  ex  hypothesi,  the  legislature  regards 
as  not  being  in  a  position  to  protect  them- 
selves.    None  of  these  considerations  apply 
to  the  case  of  a  person  holding  the  position 
of  a  certificated  manager  of  a  colliery,  who 
comes  within  a  very  different  category  from 
that  of  an  ordinary  workman.    I  do  not  say 
that  a  person  in  the  position  of  the  deceased 
is  absolutely  excluded  from  the  possibility 
of  coming  within  the  act,  for  it  is  possible 
that  such  a  man  might  in  fact  work  as  a 
workman,  though  I  do  not  know  that  such 
a    contingency    is    at    all    probable;    there 
might,   however,   be    facts    in   a    particular 
case   from   which   the   conclusion   might   be 
drawn  that,  although  the  man  was  a  cer- 
tificated manager,  he  was  also  a  workman." 

93Bagnall  v.  Levinstein  [1907]  I  K.  B. 
(Eng.)  531,  76  L.  J.  K.  B.  N.  S.  234,  96  L.  T. 
N.  S.  184,  23  Times  L.  R.  165.  The  position 
of  Collins,  M.  R.,  and  Cozens-Hardy,  L.  J., 
was  that  the  governing  factor  in  determin- 
ing whether  the  man  was  a  workman  with- 
in the  meaning  of  the  act  was  the  question 
what  he  was  employed  to  do;  and  that  the 
judge  misdirected  himself  by  not  taking  into 
consideration  the  terms  of  the  employment 
as  disclosed  in  the  agreement,  and  in  treat- 
ing the  performance  of  manual  labor  in  the 
discharge  of  his  duties  as  conclusive  that 
the  man  was  a  workman  within  the  mean- 
ing of  the  act.  The  master  of  the  rolls  re- 
marked: "The  root  of  the  matter  is  that 
each  case  must  be  decided  in  view  of  that 
which  the  person  whom  it  is  sought  to 
treat  as  a  workman  was  employed  to  do. 
The  learned  judge  has  not  dealt  quite  fairly 
with  the  argument  as  to  this  man  being  a 


116 


WORKMEN'S  COMPENSATION. 


Under  the  definition  clause  of  the  exist- 
ting  act  of  1906  (§  13),  certain  classes 
of  employees  are  expressly  excluded 
from  the  scope  of  the  term  "workman," 
and  with  these  exceptions  the  term  means 
"any  person  who  has  entered  or  works 
under  a  contract  of  service  or  appren- 
ticeship with  an  employer,  whether  by 
way  of  manual  labor,  clerical  work,  or 
otherwise,  and  whether  the  contract  is 
expressed  or  implied,  is  oral  or  in  writ- 
ing." 

Under  this  clause  a  skilled  music  teach- 
er is  not  a  workman.94  Neither  is  a  per- 
son who,  at  an  exhibition  of  an  airship, 


is  engaged  to  explain  the  various  parts 
of  the  machine  and  the  exploits  of  the 
operator.96  And  a  salesman  is  not  a 
workman  under  the  Manitoba  statute.96 

But  a  law  writer  is  a  workman  with- 
in the  English  act.97  So  is  a  professional 
football  player  who  had  entered  into  a 
written  agreement  to  serve  the  defend- 
ants for  one  year  at  a  weekly  wage,  by 
playing  football  when  required,  with  the 
team  of  the  club,  to  attend  regularly  the 
training  and  general  instruction,  and 
not  to  engage  himself  to  play  football  for 
any  other  person  or  club  during  the 
stipulated  term.98  And  a  man  employed 


master  of  science.  It  is  true  that  a  person 
•of  that  description  may  be  employed  as  a 
•workman,  but  the  governing  factor  is 
whether  he  was  employed  as  a  master  of 
science,  to  get  the  benefit  of  his  attain- 
ments; and  if  the  true  inference  from  the 
facts  is  that  this  was  the  main  purpose  of 
the  employment,  the  case  is  not  prima  j 
facie  one  of  employment  as  a  workman, 
even  though  the  man  has  to  do  some  manual 
labor  in  putting  himself  in  a  position  to  give, 
his  skilled  service.  The  case  of  Simpson  v. 
Ebbw  Vale  Steel,  Iron  &  Coal  Co.  (Eng.) 
supra,  reaffirms  the  position  that  the  popu- 
lar meaning  must  be  given  to  the  term 
'workman,'  and  to  call  a  skilled  expert  a 
workman  is  to  travel  out  of  the  ordinary 
meaning  of  that  term."  Farwell,  L.  J., 
dissented  on  grounds  which  were  thus 
forcibly  stated:  "In  the  present  case  there 
is  an  agreement  in  writing  for  service  by 
a  man  who  is  a  skilled  workman.  I  should 
be  loath  to  say  that  education  is  a  bar  to 
success  in  a  claim  for  compensation  under 
the  act.  In  my  view  the  consideration 
whether  the  applicant  is  a  gentleman,  or 
whether  his  education  is  good  or  bad,  is  not 
relevant.  The  case  does  not,  in  my  opinion, 
turn  so  much  on  the  construction  of  the 
agreement,  though  that  is  an  important 
matter  to  consider,  as  on  the  work  that  was 
done  by  the  deceased  under  it.  In  the  agree- 
ment the  undertaking  of  the  deceased  to 
obey  all  orders  of  those  in  authority  in  such 
work  as  might  be  allotted  to  him  is  put  in 
the  forefront  of  the  matter.  .  .  .  Under 
this  agreement  the  man  might  be  employed 
in  such  a  way  as  to  be  a  mere  workman,  or 
he  might  be  something  more,  and  which  he 
was  must  depend  on  the  event.  If  he  had 
been  found  sufficiently  skilful  to  be  em- 
ployed in  the  laboratory,  he  might  have 
been  withdrawn  from  manual  labor;  but 
this,  as  appears  from  the  evidence  of  the 
manager,  was  not  the  case.  That  evidence 
is  that  when  the  man  was  disabled  a  fore- 
man did  his  work,  and  that  he  had  done  no 
research  work  during  the  whole  time  that 
he  was  there;  for  certainly  five  sixths  of  his 
time  he  was  working  as  an  ordinary  though 
skilled  workman.  The  hours  that  he 
worked  and  the  salary  that  he  received 
appear  to  me  to  make  no  difference,  and 
there  is  in  my  opinion  nothing  in  the  terms 
L.R.A.1916A. 


of  the  agreement  which  overrides  the  fact 
that  the  man  was  doing,  for  the  greater 
part  of  the  time,  work  which  would  be 
done  by  an  ordinary  workman." 

94  Simmons  v.  Heath  Laundry  Co.  [1910] 
1  K.  B.    (Eng.)    543,  79  L.  J.  K.  B.  N.   S. 
395,  102  L.  T.  N.  S.  210,  26  Times  L.  R.  326, 
54  Sol.  Jo.  392,  3  B.  W.  C.  C.  200.     Cozens- 
Hardy,  M.  R.,  said  that  there  might  be  a 
contract  for  services,  but  not  a  contract  for 
service. 

95  Waites    v.    Franco-British    Exhibition 
(1909)  25  Times  L.  R.  (Eng.)  441. 

96  Hewitt  v.  Hudson's  Bay  Co.   (1910)   20 
Manitoba   L.   Rep.    126,   15   West.  L.   Rep. 
(Can.)  372. 

97McKrill  v.  Howard  (1909)  2  B.  W.  C.  C. 
(Eng.)  460. 

98  Walker  v.  Crystal  Palace  Football 
Club  [1910]  1  K.  B.  (Eng.)  87,  79  L.  J.  K. 
B.  N.  S.  229,  101  L.  T.  N.  S.  645,  26  Times 
L.  R.  71,  54  Sol.  Jo.  65,  3  B.  W.  C.  C.  53, 
Ann.  Cas.  1913C,  25.  Cozens-Hardy,  M.  R., 
and  Fletcher  Moulton,  L.  J.,  were  of  opin- 
ion that  the  contract  was  one  "by  way  of 
manual  labor,"  and  that  it  certainly  came 
under  the  more  general  words  "or  other- 
wise." Farwell,  L.  J.,  thus  discussed  the 
two  points  made  by  the  defendants.  "The 
appellants  have  made  two  points.  They 
first  of  all  say  there  is  no  contract  of  serv- 
ice with  an  employer,  because  the  football 
player  is  at  liberty  to  exercise  his  own  in- 
itiative in  playing  the  game.  That  appears 
to  me  to  be  no  answer.  There  are  many 
employments  in  which  the  workman  exer- 
cises initiative,  but  he  may  or  may  not  be 
bound  to  obey  the  directions  of  his  em- 
ployer when  given  to  him.  If  he  has  no 
duty  to  obey  them,  it  may  very  well  be 
that  there  is  no  service,  but  here  not  only 
is  the  agreement  by  the  player  that  he  will 
serve,  but  he  also  agrees  to  obey  the  train- 
ing and  general  instructions  of  the  club. 
I  cannot  doubt  that  he  is  bound  to  obey  any 
directions  which  the  captain,  as  the  dele- 
gate of  the  club,  may  give  him  during  the 
course  of  the  game, — that  is  to  say,  any 
direction  that  is  within  the  terms  of  his 
employment  as  a  football  player.  The 
other  point  taken  is  that  he  is  not  a  'work- 
man' within  the  act.  It  appears  to  me 
that  it  is  impossible  for  the  court  to  con- 
sider the  practical  utility  of  the  service  or 


WHO  ARE  WORKMEN. 


117 


on  temporary  work  by  a  distress  com- 
mittee under  the  unemployed  workmen's 
act  of  1905."  And  a  blind  man  who, 
upon  entering  an  institution  for  the 
blind,  stipulated  that  he  would  give  his 
services  for  what  they  were  worth,  and 
in  return  receive  board,  lodging,  and 
clothing,  and  5  shillings  a  month  in 
money.1 

The  statute  expressly  provides  that 
the  term  workman  does  not  include  a 
member  of  the  employer's  family,  dwel- 
ling in  his  house,2  nor  a  member  of  the 
police  force.8 

Workmen  engaged  in  lumbering  opera- 
tions are  not  within  the  provisions  of 
the  Quebec  act.4 

The  licensed  driver  of  a  taxicab,  who 
pays  a  certain  per  cent  of  the  earnings 


to   the   owner,   is   a   bailee,   and   not   a 
workman.6 

One  member  of  a  partnership  is  not 
entitled  to  compensation  for  injuries 
received  while  working  for  the  partner- 
ship.6 But  a  person  who  owns  ten  sixty- 
fourths  shares  of  a  trading  vessel,  and 
who  is  employed  as  master  by  the  man- 
aging owner,  is  entitled  to  compensation 
when  injured  in  the  course  of  his  em- 
ployment.7 So,  a  man  does  not  cease 
to  be  a  workman  within  the  meaning  of 
the  act  merely  because  his  remuneration 
is  a  share  of  the  profits ; 8  and  pay- 
ment by  a  percentage  of  the  gross  earn- 
ings does  not  of  itself  indicate  partner- 
ship ; 9  but  the  facts  may  be  such  as 
to  show  that  the  man  was  a  co-adven- 
turer, and  not  a  workman.10 


work  performed.  It  may  be  sport  to  the 
amateur,  but  to  a  man  who  is  paid  for  it 
and  makes  his  living  thereby,  it  is  his 
work.  I  cannot  assent  to  the  proposition 
that  sport  and  work  are  mutually  exclu- 
sive terms,  or  hold  that  the  man  who  is  em- 
ployed and  paid  to  assist  in  something  that 
is  known  as  sport  is  therefore  necessarily 
excluded  from  the  definition  of  workman 
within  the  meaning  of  the  act.  I  put,  dur- 
ing the  argument,  the  case  of  the  huntsman 
and  whips  of  a  pack  of  hounds.  The  rest 
of  the  field  ride  for  their  own  amusement, 
but  the  three  I  have  mentioned  are  em- 
ployed by  and  obey  the  orders  of  the 
master,  and  risk  their  necks,  not  entirely 
for  their  own  amusement,  but  because  they 
are  paid  to  do  it." 

99Gilroy  v.  Mackie  [1909]  S.  C.  (Scot.) 
466,  2  B.  W.  C.  C.  269.  Lord  Duneden 
said :  "A  pauper  may  be  compelled  to  work 
in  a  poorhouse,  or  a  prisoner  in  prison,  by 
force  of  statute.  There  is,  therefore,  en- 
tirely wanting  that  freedom  of  contract  on 
both  sides  which  is  of  the  essence  of  em- 
ployment as  we  are  using  the  term  'em- 
ployment' in  the  sense  of  the  act  before  us. 
But  I  am  afraid  that  the  difference  here 
is  that  there  is  just  the  question  of  freedom. 
The  unemployed  need  not  go  and  ask  for 
work  unless  he  likes,  and  he  need  not  take 
the  work  offered  unless  the  terms  suit  him. 
If  he  does  take  the  work,  I  think  he  becomes 
employed." 

1  MacGillivray  v.  Northern  Counties  Insti- 
tute [1911]   S.  C.  897,  48  Scot.  L.  R.  811, 
4  B.  W.  C.  C.  429 

2  A  son  twenty-six  years  of  age,  who  is 
employed  by  his  father,  lives  with  him,  and 
pays  him   for  his  board  and  lodging,  is  a 
member  of  the  father's  family,  dwelling  in 
his  house,  and  is  not  a  workman.     M'Doug- 
all  v.  M'Dougall  [1911]  S.  C.  426,  48  Scot. 
L.  R.  315,  4  B.  W.  C.  C.  373. 

A  son  living  in  the  same  house  with  his 
father,  and  employed  by  him  to  aid  in 
carrying  out  a  contract,  cannot  recover  from 
the  principal,  since  he  could  not  recover 
from  the  contractor,  his  father,  under  the 
definition  of  workman  contained  in  §  13  of 
L.R.A.1916A. 


the  act.  Marks  v.  Came  [1909]  2  K.  B. 
(Eng.)  516,  78  L.  J.  K.  B.  N.  S.  853,  100 
L.  T.  N.  S.  950,  25  Times  L.  R.  620,  53  Sol. 
Jo.  561,  2  B.  W.  C.  C.  186. 

SSudell  v.  Blackburn  Corp.   (1910)    3  B. 
W.  C.  C.  (Eng.)  227. 

4  Provost  v.  St.  Gabriel  Lumber  Co.  (1910) 
12  Quebec  Pr.  Rep.  285;  Duquette  v.  Lake 
Megantic  Pulp  Co.  (1911)  12  Quebec  Pr.  Rep. 
359;   Novico  v.  E.  B.  Eddy  Co.    (1911)    12 
Quebec  Pr.  Rep.  319. 

5  Smith  v.  General  Motor  Cab  Co.  [1911| 

A.  C.   (Eng.)   188,  80  L.  J.  K.  B.  N.  S.  839,. 
105  L.  T.  N.  S.  113,  27  Times  L.  R.  370,  55- 
Sol.   Jo.   439,  4  B.   W.  C.  C.   249,   1   N.   C. 
C.  A.  576. 

6  Ellis  v.  Ellis  [1905]  1  K.  B.  (Eng.)  324,. 
74  L.  J.  K.  B.  N.  S.  229,  53  Week.  Rep.  311.. 
92  L.  T.  X.  S.  718,  21  Times  L.  R.  182. 

7  Sharpe  v.  Carswell  [1910]  S.  C.  391,  41 
Scot.  L.  R.  335,  3  B.  W.  C.  C.  552. 

8  A  contract  of  service  exists  between  the 
owner  of  a   sailing  barge  and  the  master, 
where  the  owner  fixed  the  rates  and  direct- 
ed to  what  dock  it  was  to  be  taken,  al- 
though his  remuneration  consisted  of  a  half 
share  of  the  profits,  out  of  which  he  was  to- 
engage  a  mate  and  pay  part  of  the  wages- 
of  the  third  hand.    Smith  v.  Horlock  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  441,  109  L.  T.  N.. 
S.  196,  6  B.  W.  C.  C.  638. 

9  The  act  is  applicable  to  a  member  of  ai 
crew  of  a  small  cargo  boat,  whose  remuner- 
ation consisted  of  a  specified  share  of  the- 
gross  earnings.     Clark  v.  Jamieson   [19091' 
S.  C.  132,  46  Scot.  L.  R.  74. 

In  Jones  v.  The  Alice  &  Eliza   (1910)    3 

B.  W.  C.  C.    (Eng.)   495,  it  was  held  that 
the  mere  fact  that  the  master  was  remu- 
nerated by  the  payment  of  two  thirds  of  the 
gross  receipts  was  not  sufficient  to  enable 
the  court  to   draw   the   inference  that   the 
master  was  not  the  servant  of  the  owners, 
where  the  master's  wife  swore  that  he  was 
the  servant  of  the  owners,  and  the  latter 
declined  to  give  any  evidence  upon  the  sub- 
ject. 

10  There  is  no  contract  of  service  between 
the  owner  of  a  vessel  and  the  master,  where 
the  owner  agreed  to  furnish  the  vessel  and. 


118 


WORKMEN'S  COMPENSATION. 


Members  of  the  crew  of  a  fishing  ves- 
sel who  are  paid  by  a  share  of  the  profits 
or  gross  earnings  of  the  vessel  are  ex- 
pressly excluded  from  the  act.  See  ante, 
105. 

2.  Independent  contractors. 

It  has  been  held  that  the  word  "work- 
man" does  not  embrace  employees  who 
occupy  the  position  of  independent  con- 
tractors.11 But  the  mere  fact  that  a 
man  works  by  the  piece  is  not  sufficient 


gear  and  repairs,  and  the  master  was  to 
hire  the  crew  and  pay  all  other  expenses, 
and  go  to  what  port  he  liked,  and  was  to 
be  paid  by  taking  two  thirds  of  the  gross 
freight.  Boon  v.  Quance  (1910)  102  L.  T. 
N.  S.  (Eng.)  443,  3  B.  W.  C.  C.  106. 

Hughes  v.  Postlethwaite  (1910)  4  B.  W. 
C.  C.  (Eng.)  105,  was  decided  upon  the  au- 
thority of  Boon  v.  Quance,  to  which  it  was 
similar  in  facts. 

The  master  of  a  barge,  who  receives  one 
half  the  net  earnings  as  his  wages,  out  of 
which  he  has  to  pay  the  mate,  is  not  a 
workman.  Cole  v.  Shrubsall  [1912]  W.  C. 
Kep.  (Eng.)  226,  5  B.  W.  C.  C.  337. 

The  owners  of  a  vessel  are  not  estopped 
from  denying  that  a  mate  was  employed  by 
:them  by  the  fact  that  compensation  was 
given  him  for  several  months,  which  was 
paid  through  an  insurance  company  with 
which  the  owners  had  insured  both  the  cap- 
tain and  the  mate,  it  being  shown  that  the 
mate  was  engaged  by  the  captain,  and  paid 
by  him  on  the  sharing  system  out  of  the 
profits  of  the  voyage.  Standing  v.  East- 
wood [1912]  W.  C.  Rep.  (Eng.)  200,  106  L. 
T.  N.  S.  477,  5  B.  W.  C.  C.  268. 

There  can  be  no  compensation  recovered 
for  the  death  of  a  mate  who  was  to  receive 
a  share  of  the  freight  of  the  voyage.  Hoare 
v.  The  Cecil  Rhodes  (1911)  5  B.  W.  C.  C. 
(Eng.)  49. 

The  decisions  in  these  cases  may  also 
be  referred  to  the  principle  that  compensa- 
tion is  not  recoverable  where  a  "contract  of 
service"  does  not  exist  between  the  work- 
man and  the  alleged  employer.  See  ante, 
114. 

11  Simmons  v.  Faulds  (1901)  17  Times  L.  R. 
(Eng.)  352,  65  J.  P.  371;  Vamplew  v.  Park- 
gate  Iron  &  Steel  Co.  [1903]  1  K.  B.  (Eng.) 
851,  72  L.  J.  K.  B.  N.  S.  575,  67  J.  P.  417, 
51  Week.  Rep.  691,  88  L.  T.  N.  S.  756,  19 
Times  L.  R.  421;  M'Gregor  v.  Dansken 
(1899)  1  Sc.  Sess.  Cas.  5th  series,  536,  36 
Scot.  L.  R.  393,  6  Scot.  L.  T.  308. 

12A  workman  whose  trade  was  the  fixing 
of  enamel  letters  to  windows,  and  who  had 
been  for  a  year  in  the  habit  of  calling  on  a 
firm  who  made  and  dealt  in  enamel  letters, 
and  of  obtaining  work  from  them,  being 
paid  by  the  piece,  defraying  his  own  travel- 
ing expenses,  and  under  no  obligation  to 
undertake  any  particular  job,  and  who  was 
at  liberty  to  accept,  and  occasionally  ac- 
cepted, work  from  other  employers,  is  a 
L.R.A.1916A. 


to  exclude  him  from  the  benefits  of  the 
compensation  act.12  Nor  is  a  workman 
disentitled  to  compensation  merely  be- 
cause he  contracted  to  do  the  work  at 
a  lump  sum,  and  not  by  the  day.13 

The  question  who  are  independent 
contractors  has  been  passed  upon  in  a 
number  of  cases  involving  the  compen- 
sation act,  which  are  cited  below,  but 
it  should  be  noted  that  the  act  does  not 
attempt  to  define  the  term  "independent 
contractors,"  and  these  cases  are  gov- 
erned by  general  principles.14 


"workman."  Taylor  v.  Burnham  [1910]  S. 
C.  705,  47  Scot.  L.  R.  643,  3  B.  W.  C.  C.  569. 

A  finding  that  the  injured  man  was  a 
workman  is  justifiable  where  he  was  one  of 
a  squad  of  mechanics  who  were  paid  by  the 
piece,  for  work  on  a  vessel  under  construc- 
tion, but  were  bound  to  work  continuously 
all  the  working  hours  recognized  in  the 
yard,  were  supervised  by  the  foreman  of  the 
employer,  and  were  subject  to  printed  rules 
and  regulations  "to  be  observed  by  the 
workmen  in  the  employment"  of  shipbuild- 
ers. M'Cready  v.  Dunlop  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  1027,  37  Scot.  L.  R.  779,  8 
Scot.  L.  T.  91. 

A  finding  that  the  injured  person  was  a 
"workman"  is  justifiable,  where  he  was  em- 
ployed in  a  quarry  under  an  agreement  that 
he  should  be  paid  so  much  for  every  ton 
he  got  out,  and  the  tools  were  found  for 
him,  and  he  used  to  hire  and  discharge  the 
men  who  worked  under  him.  Evans  v. 
Penwyllt  Dinas  Silica  Brick  Co.  (1901)  18 
Times  L.  R.  (Eng.)  58. 

A  stone  breaker  engaged  by  a  contractor 
to  break  stones  for  road  metal  at  a  certain 
rate  per  cubic  yard  of  metal  broken,  and 
subject  to  the  orders  of  the  contractor,  and 
to  dismissal  by  him,  is  a  "workman."  Doh- 
arty  v.  Boyd  [1909]  S.  C.  87,  46  Scot.  L.  R. 
71. 

A  miner  who  is  paid  so  much  per  ton  of 
coal  extracted,  and  extra  for  timbering, 
and  who  supplies  his  own  tools  and  works 
in  a  room  alone,  as  he  can  earn  more  by  so 
doing  than  by  sharing  the  room  with  anoth- 
er miner,  is  not  an  independent  contractor. 
Cargeme  v.  Alberta  Coal  &  Min.  Co.  (1912) 
6  D.  L.  R.  (Alberta)  231,  7  B.  W.  C.  C.  1020, 
22  West.  L.  Rep.  (Can.)  68. 

13  Ibid. 

14  A  man  who  enters  into  an  agreement 
with  a  mining  company  to  carry  out  cer- 
tain specified  operations  is  an  independent 
contractor,  and  not  a  workman,  where  the 
mining  company  exercises  no  control  over 
the  man  apart  from  the  agreement.     Reid 
v.  Leitch  Collieries    (1912)    7   B.   W.   C.  C. 
(Alberta)  1017. 

An  independent  contract  by  which  a 
slater  undertook  to  do  certain  slating  work 
for  the  employer  is  not  changed  into  a  con- 
tract of  employment  by  the  fact  that  after 
four  days  of  work,  the  employer,  being 
dissatisfied  with  the  slow  progress  that  was 
made,  sent  another  slater  with  a  laborer  to 


INDEPENDENT  CONTRACTORS. 


119 


"push  the  work  on."  Barnes  v.  Evans 
(1914)  W.  C.  &  Ins.  Rep.  (Eng.)  113,  7 
B.  W.  C.  C.  24. 

A  laborer  who,  with  several  others,  enters 
into  a  contract  with  a  quarryman  to  remove 
the  surface  earth  from  a  new  part  of  the 
quarry,  at  so  much  per  cubic  yard,  and 
who  exercises  full  control  over  the  work, 
and  is  not  tied  down  to  hours,  is  an  inde- 
pendent contractor;  and  his  wife  is  not 
entitled  to  compensation  for  injuries  which 
he  received,  resulting  in  his  death.  Hayden 
v.  Dick  (1902)  5  Sc.  Sess.  Cas.  5th  series, 
150,  40  Scot.  L.  R.  95,  10  Scot.  L.  T.  380. 

A  man  who  agreed  to  undertake  the  trap- 
ping of  rabbits  on  certain  premises  at  so 
much  a,  couple,  the  employer  to  supply  the 
gear  and  also  to  allow  the  use  of  a  cottage 
for  the  work,  is  not  a  workman,  but  an  in- 
dependent contractor.  M'Connell  v.  Gal- 
braith  (1913)  48  Ir.  Law  Times,  30  W.  C, 
&  Ins.  Rep.  92,  7  B.  W.  C.  C.  968. 

A  man  who  enters  into  a  written  con- 
tract with  harbor  commissioners  "for  sup- 
plying a  yawl  and  crew  of  four  men"  for 
use  at  a  certain  pilot  station  and  lighthouse 
is  an  independent  contractor,  and  not  a 
workman.  Walsh  v.  Waterford  Harbour 
Comrs.  (1914)  W.  C.  &  Ins.  Rep.  16,  47  Ir. 
L.  Times  263,  7  B.  W.  C.  C.  960. 

Where  a  contractor  had  a  contract  from 
a  district  council  to  erect  certain  laborers' 
cottages,  and  made  an  agreement  with  a 
mason  for  the  latter  to  do  the  work,  the 
contractor  furnishing  the  materials,  and  the 
mason  agreed  to  carry  out  the  contract  to 
the  satisfaction  of  the  council's  engineer, 
and  to  have  the  work  finished  in  the  time 
specified  in  the  contract  between  the  coun- 
cil and  the  contractor,  and  there  was  no 
stipulation  that  he  was  to  work  continuous- 
ly, the  county  court  judge  may  find  that 
the  mason  was  a  subcontractor,  and  that 
the  relation  between  him  and  the  con- 
tractor was  not  that  of  master  and  servant, 
but  that  of  contractor  and  subcontractor; 
the  fact  that  he  was  to  be  paid  by  the 
day  not  deciding  the  case.  Byrne  v.  Balt- 
inglass  Rural  Dist.  Council  (1911)  45  Ir. 
L.  Times,  206,  5  B.  W.  C.  C.  566. 

A  man  engaged  by  a  farm  bailiff  to  cut 
down  certain  trees  may  be  found  to  be 
an  independent  contractor,  and  not  a  work- 
man, where  there  were  four  men  engaged 
to  do  the  work,  and  the  work  was  paid 
for  at  so  much  a  tree  and  so  much  for 
extras,  and  the  men  cut  the  tree  as  and 
when  they  liked,  were  not  bound  to  work 
every  day  unless  they  saw  fit,  and  the 
bailiff  made  little  or  no  interference  with 
the  work  provided  it  was  done  within  a 
reasonable  time,  notwithstanding  the  bail- 
iff had,  on  a  former  occasion,  sent  a  man 
away  for  drunkenness,  and  on  this  occasion 
once  told  a  man  which  way  to  make  a  tree 
fall,  and,  immediately  after  the  injury  to 
the  workman,  increased  the  number  of 
workmen  from  three  to  four.  Curtis  v. 
Plumptre  (1913)  W.  C.  &  Ins.  Rep.  (Eng.) 
195,  6  B.  W.  C.  C.  87. 

The  owner  of  a  horse,  who  contracts, 
L.R.A.1916A. 


when  required,  to  drag  logs  from  one  place 
to  another,  for  which  he  is  paid  at  a  cer- 
tain rate  per  day,  and  whose  share  of  the 
work  is  confined  to  leading  the  horse,  which 
he  might  do  by  means  of  a  substitute,  there 
being  no  contract  that  he  should  perform 
the  work  personally,  is  not  a  "workman." 
Chisholm  v.  Walker  [1909]  S.  C.  31,  46 
Scot.  L.  R.  24,  2  B.  W.  C.  C.  261.  Paterson 
v.  Lockhart  (Scot.)  infra,  in  which  the 
man  was  bound  to  do  the  work  himself, 
was  distinguished. 

A  cartman  who  carted  stones  for  a  coun- 
ty council,  doing  the  work  when  he  wished, 
and  subject  to  no  control  by  the  council 
except  that  their  surveyor  told  him  where 
the  stones  were  to  be  placed,  and  who  was 
paid  by  the  day  for  the  work  he  did,  may 
be  found  not  to  be  a  workman  within  the 
act.  Ryan  v.  Tipperary  (1912)  46  Ir.  Law 
Times,  69,  5  B.  W.  C.  C.  578. 

But  the  finding  that  the  applicant  for 
compensation  was  a  workman  is  supported 
by  evidence  that  he  was  employed  by  a 
road  overseer  to  cart  stone,  that  he  fur- 
nished his  own  cart  and  horse,  and  was 
paid  so  much  per  day,  and  that  he  might 
do  work  for  other  people  on  any  particular 
day  "provided  that  he  was  not  badly  want- 
ed." O'Donnell  v.  Clare  County  Council 
(1913)  W.  C.  &  Ins.  Rep.  273,  47  Ir.  Law 
Times  41,  6  B.  W.  C.  C.  457. 

A  plumber  called  in  to  make  repairs, 
and  who  was  paid  for  the  time  he  worked, 
the  owner  of  the  house  supplying  the  mate- 
rial, indicating  where  the  defect  was,  and 
from  time  to  time,  during  the  course  of  the 
work,  visiting  the  place  to  see  what  prog- 
ress had  been  made,  is  a  servant,  and  not 
an  independent  contractor.  McNally  v. 
Fitzgerald  (1914)  48  Ir.  Law  Times  4, 
7  B.  W.  C.  C.  966. 

Where  a  paper  hanger  and  decorator 
agreed  to  paper  a  house  being  erected  by 
a  builder,  and  was  permitted  to  come  and 
go  and  work  exactly  when  he  liked,  and 
made  out  a  bill  on  the  printed  form  of 
the  work  done  by  him,  and  receipted  it 
on  payment,  and  there  was  evidence  at 
the  hearing  of  a  claim  for  compensation 
that  the  builder  had  told  "all  his  other 
men,"  except  the  paper  hanger,  not  to  use 
the  plank  by  the  breaking  of  which  he 
was  injured,  the  county  court  judge  may 
find  that  the  paper  hanger  was  a  workman 
within  the  meaning  of  the  act.  Lewis  v. 
Stanbridge  (1913)  W.  C.  &  Ins.  Rep.  (Eng.) 
515,  6  B.  W.  C.  C.  568. 

The  relation  of  master  and  servant  exists 
where  a  man  who  provided  his  own  horse 
and  cart  entered  into  a  contract  with  a 
dairy  society  to  cart  his  milk  to  and  from 
the  creamery  during  a  certain  period  on 
such  dates  as  it  should  fix,  for  which  serv- 
ice he  was  to  be  paid  at  the  rate  of  one- 
half  penny  per  gallon.  Clark  v.  Bailie- 
Borough  Co-op.  Agri.  &  D.  Soc.  (1913)  W. 
C.  &  Ins.  Rep.  (Eng.)  374,  as  cited  in  Law 
Reports  Current  Dig.  1913,  col.  772. 

A  man  engaged  to  take  charge  and  man- 
age a  herd  of  cows  at  a  dairy,  who,  under 
the  contract  of  employment,  is  to  feed 


120 


WORKMEN'S  COMPENSATION. 


3.  "Casual"  employees. 

For  American  cases  defining  this  term, 
see  post,  247. 

A  charwoman  who  has  been  employed 
regularly  every  Friday  and  every  other 
Tuesday  for  over  eighteen  months  is  in 
the  regular,  and  not  the  casual,  employ- 
ment of  the  defendants.15  In  a  few  cases 
it  has  been  held  that  a  window 
washer  who  worked  only  occasionally  as 
such  work  was  necessary  was  engaged 
in  casual  employment  only.16  The  work 
of  cutting  down  or  lopping  trees,  which  is 
done  by  a  workman  incidentally,  in  con- 
nection with  other  work,  is  casual.17  But 
a  workman  employed  each  season  for 
several  weeks  or  even  months  at  a  time 
to  do  work  in  the  employer's  woods,  in 
cutting  underwood,  trimming  trees,  etc., 
and  who  was  paid  by  the  week,  not  losing 
any  time  because  of  rain,  is  not  a  casual 
laborer.18 

The  owner  of  a  small  garden  which  is 


surrounded  by  a  high  hedge  on  the  land 
of  a  farmer  is  entitled  to  compensation 
from  the  latter  for  injuries  received 
while  engaged  in  trimming  the  hedge,  for 
pay,  at  the  request  of  the  farmer,  on  his 
complaint  that  the  hedge  was  so  tall  as 
to  shade  his  garden.19 

Under  §  13,  if  the  employment  is  not  of 
a  casual  nature,  it  is  not  necessary  to 
consider  the  further  question  with  re- 
gard to  whether  or  not  the  workman  was 
employed  otherwise  than  for  the  pur- 
poses of  the  employer's  trade  or  busi- 
ness.20 

As  to  what  constitutes  employment 
"for  the  purposes  of  the  employer's 
trade  or  business,"  see  ante,  96. 

4.  Seamen. 

As  maritime  work  was  not  one  of  the 
descriptions  of  employment  covered  by 
the  act  of  1897,  it  did  not  affect  the  re- 
lation between  shipowners  and  sailors 
"when  engaged  in  their  ordinary  occupa- 


the  herd  "according  to  instructions  from 
the  employers,"  to  manufacture  "the  milk 
into  goods,  as  may  be  desired  by  the  em- 
ployers," and  to  do  various  other  things, 
"as  may  be  required  by  the  employers,"  is 
a  workman  within  the  meaning  of  the  act. 
Roper  v.  Freke  (1915)  31  Times  L.  R. 
(Eng.)  507. 

A  man  engaged  to  quarry,  from  a  quarry 
on  an  estate,  stone  blocks  for  wire  fences 
and  farm  buildings  to  meet  estate  require- 
ments, in  such  quantities  as  the  factor 
should  direct,  who  was  paid  by  the  day, 
and  who  might  employ  assistants,  to  be 
paid  through  him  at  the  same  rate,  and 
whose  tools  were  supplied  partly  by  him- 
self and  partly  by  the  estate,  and  who  was 
told  where  he  was  to  work,  but  was  free 
to  choose  the  part  of  the  quarry  where  the 
excavation  was  to  be  made, — was  a  servant 
or  workman  in  the  sense  of  the  act.  Pater- 
son  v.  Lockhart  (1906)  7  Sc.  Sess.  Gas.  5th 
series,  954,  42  Scot.  L.  R.  24.  See  Chisholm 
v.  Walker  (Scot.)  supra. 

ISDewhurst  v.  Mather  [1908]  2  K.  B. 
(Eng.)  754,  77  L.  J.  K.  B.  N.  S.  1077,  99 
L.  T.  N.  S.  568,  24  Times  L.  R.  819,  52 
Sol.  Jo.  681. 

16  A  man  who  was  sent  for  to  wash 
windows  whenever  they  needed  it,  which 
was  at  intervals  of  about  six  weeks,  there 
being  no  agreement  between  the  parties, 
was  in  the  casual  employment  only,  al- 
though he  had  been  doing  the  work  for 
about  two  years.  Hill  v.  Begg  [1908]  2 
K.  B.  (Eng.)  802,  77  L.  J.  K,  B.  N.  S. 
1074,  99  L.  T.  N.  S.  104,  24  Times  L.  R. 
711,  52  Sol.  Jo.  581. 

Where  a  window  cleaner  about  once  a 
month  went  to  clean  the  windows  of  the 
house  of  a  medical  practitioner,  who  used 
a  portion  of  the  house  in  connection  with 
his  professional  practice,  there  being  no 
formal  contract  between  the  parties,  and 
the  window  cleaner  calling  and  doing  the 
L.R.A.1916A. 


work  without  receiving  on  each  occasion 
A  special  invitation  or  special  permission 
to  do  so,  his  employment  was  of  a  casual 
nature.  Rennie  v.  Reid  [1908]  S.  C.  (Scot.) 
1057. 

The  county  court  judge  is  justified  in 
finding  that  the  employment  is  of  a  casual 
nature  where  the  workman,  a  window  clean- 
er, cleaned  the  windows  of  a  private  house 
for  the  same  employer  once  a  nonth  for 
about  four  years,  when  he  fell  and  died 
as  a  result,  and  no  definite  arrangements 
had  been  made  in  advance  as  to  the  regu- 
lar time  for  the  work.  Ritchings  v.  Bry- 
ant (1913)  W.  C.  &  Ins.  Rep.  (Eng.)  171, 
6  B.  W.  C.  C.  183. 

17  Where    a    carpenter    undertakes    a    job- 
of    cutting    down    trees    on    the    property 
of  a   person   for  whom   he  has  been  work- 
ing   as    a    carpenter,    his    employment    is- 
casual.      M'Carthy    v.    Norcott     (1908)     43: 
Ir.   Law   Times,   17. 

The  county  court  judge  may  find  that 
a  jobbing  gardener  who  was  employed  to- 
cut  down  and  lop  some  trees  in  the  grounds 
of  a  large  private  houst>.  ami  \\t\\..  at  er 
that  work  was  done,  assisted  in  relaying 
part  of  the  lawn,  and  alter  the  huvn  was 
finished  was  put  on  to  cut  and  lop  some 
more  trees,  and  Avas  paid  at  so  much  per 
day,  there  being  nothing  said  as  to  how 
long  he  was  to  be  employed,  was  engaged 
in  employment  of  a  casual  nature,  and  was 
not  within  the  protection  of  the  statute. 
Knight  v.  Bucknill  (1913)  W.  C.  &  Ins. 
Rep.  (Eng.)  175,  57  Sol.  Jo.  245,  6  B.  W. 
C.  C.  160. 

18  Smith    v.    Buxton    (1915)    84    L.    J.    K. 

B.  N.  S.    (Eng.)    697,  112  L.  T.  N.  S.  893, 
W.  C.  &  Ins.  Rep.  126,  8  B.  W.  C.  C.  196. 

19  Tombs  v.  Bomford    (1912)   W.  C.  Rep. 
(Eng.)    229,  106   L.  T.  N.  S.  823,  5  B.  W. 

C.  C.  338. 

20  Smith  v.  Buxton   (Eng.)   supra. 


WHO  ARE  DEPENDENTS. 


121 


tion  of  sailing  upon  the  seas."21  This 
doctrine  does  not  involve  the  consequence 
that  the  mere  fact  of  the  accidents  hav- 
ing happened  in  or  upon  a  ship  pre- 
vents the  injured  workman  from  claiming 
compensation  under  the  act.  His  right 
of  recovery  must  be  tested  with  refer- 
ence to  the  circumstances  attending  the 
accident.22  Under  the  act  of  1897,  the 
seaman  on  a  dock  or  harbor  in  a  foreign 
country  was  in  the  same  position  in  ref- 
erence to  compensation  as  if  he  was  at 
sea.23  But  the  act  of  1906  is  express- 
ly declared  ($  7)  to  be  applicable  to 
•''masters,  seamen,  and  apprentices  in  the 


sea  service,  and  apprentices  in  the  sea- 
fishing  service." 

5.  Remuneration. 

The  word  "remuneration,"  as  used  in 
the   act    (§    13   and   sched.   1,   2    (a)  ), 
means  the  same  as  "earnings." 24 
e.  Who  are   "dependents." 

For  American  decisions  defining  this 
term,  see  post,  248. 

1.  In  England  and  Ireland  and  in  Scot- 
land under  the  Act  of  19O6. 

The  word  "  'dependent'  probably 
means,  dependent  for  the  ordinary  neces- 
saries of  life  for  a  person  of  that  class 
and  position."  26  The  term  does  not  sig- 


21  Lord    Halsbury    in    Raine    v.    Jobson 
[1901]    A.   C.    (Eng.)    404,   70   L.   J.   K.   B. 
X.    S.    771,   49    Week.   Rep.    705,   85   L.   T. 
X.   S.   141,  17   Times  L.  R.  627. 

A  seaman  engaged  in  casting  off  his 
ship  from  a  quay  is  doing  an  ordinary 
seaman's  work,  and  is  not  within  the  act 
of  1897.  Williams  v.  Mack  (1903;  C.  C.) 
116  L.  T.  Jo.  (Eng.)  179,  6  W.  C.  C.  113. 

The  act  of  1897  does  not  apply  to  a 
seaman  injured  while  doing  a  seaman's 
work.  Griffiths  v.  Warren  (1904;  C.  C.)  116 
L.  T.  Jo.  (Eng.)  575,  6  W.  C.  C.  65. 

In  an  Irish  case  it  was  held  that  an 
able-bodied  seaman,  working  at  the  hoist- 
ing of  a  ship's  boat  by  means  of  a  crane 
on  the  quay  alongside  his  ship,  is  merely 
carrying  out  the  normal  duties  of  a  sea- 
man, and  is  therefore  not  engaged  in  an 
employment  to  which  the  act  applies. 
O'Hanlon  v.  Dundalk  &  N.  Steam  Packet 
Co.  (1899)  33  Ir.  Law  Times,  36. 

22  An  ordinary  laborer  employed  for  the 
purpose   of   doing   anything   that    is   to   be 
done  on  a  ship  lying  in  a  dock  is  not  with- 
out the  scope  of  the  act.     Raine  v.  Jobson 
[1901]    A.   C.    (Eng.)    404,   70   L.   J.   K.   B. 
N.    S.    771,   49    Week.    Rep.    705,   85    L.   T. 
N.  S.  141,  17  Times  L.  R.  627. 

Nor  is  a  man  working  on  a  dredger, 
which  went  2  miles  out  to  sea  for  the 
purpose  of  being  emptied.  Chambers  v. 
Whitehaven  Harbour  Comrs.  [1899]  2  Q. 
B.  (Eng.)  132,  68  L.  J.  Q.  B.  N.  S.  740, 
47  Week.  Rep.  533,  80  L.  T.  N.  S.  586, 
15  Times  L.  R.  341. 

23  Griffiths  v.  Warren   (Eng.)   supra. 

2*  In  estimating  the  remuneration  of  the 
purser  on  a  ship  under  §  13  of  the  act, 
both  a  bonus  which  he  received  and  the 
profit  which  he  made  by  selling  whisky, 
are  to  be  taken  into  consideration.  Skailes 
v.  Blue  Anchor  Line  [1911]  1  K.  B.  (Eng.) 
360,  80  L.  J.  K.  B.  N.  S.  442,  103  L.  T. 
N.  S.  741,  27  Times  L.  R.  119,  55  Sol. 
Jo.  107,  4  B.  W.  C.  C.  16. 

A  ship  captain  is  properly  held  to  be  a 
workman  receiving  less  than  £250  a  year 
where  he  was  employed  under  a  contract 
by  which  he  was  to  receive  his  board  and 
accommodation,  estimated  at  £45  and  10s. 
per  annum,  and  £20  per  month,  with  a 
bonus  of  £48  if  the  ship  kept  free  from 
all  damage  and  claim,  but  otherwise  was 
L.R.A.1916A. 


to  forfeit  the  bonus  and  receive  but  £16 
per  month,  and  was  lost  at  sea  with  his 
ship,  since,  had  he  survived,  he,  under 
the  terms  of  the  contract,  would  have  re- 
ceived only  the  £16  per  month,  plus  the 
board  and  accommodation.  Williams  v 
The  Maritime  [1915]  2  K.  B.  (Eng.)  137, 
84  L.  J.  K.  B.  N.  S.  633,  [1915]  W.  C.  & 
Ins.  Rep.  97,  8  B.  W.  C.  C.  267,  [1915] 
W.  N.  71,  31  Times  L.  R.  218.  Lord  Cozens- 
Hardy,  M.  R.,  said:  "It  was  contended 
on  behalf  of  the  employers,  that  regard 
ought  to  be  had  to  the  circumstance  that, 
under  the  prior  agreement,  the  terms  of 
which  were  less  beneficial  to  the  captain, 
his  average  remuneration  had  exceeded  £250, 
and  further,  that  regard  ought  to  be  had 
to  the  fact  that  the  shipowners  did  not 
always  enforce  against,  an  old  servant  their 
rights  to  a  reduction  of  salary,  unless  sat- 
isfied that  there  was  real  fault  on  the 
captain's  part.  It  seems  to  me  that  such 
generosity  on  the  part  of  the  owners  can- 
not be  taken  into  account.  The  question 
is,  what  was  the  salary  to  which  he  was 
entitled?  To  answer  this  question,  the 
language  of  the  agreement  itself  is  suffi- 
cient." 

25  See  Simmons  v.  White  Bros.  [1899]  1 
Q.  B.  (Eng.)  1007,  68  L.  J.  Q.  B.  N.  S. 
507,  47  Week.  Rep.  513,  80  L.  T.  N.  S. 
344,  15  Times  L.  R.  263,  and  Lord  Shand 
in  Main  Colliery  Co.  v.  Davies  [1900]  A. 
C.  (Eng.)  358,  69  L.  J.  Q.  B.  N.  S.  755, 
83  L.  T.  N.  S.  83,  16  Times  L.  R.  460, 
65  J.  P.  20.  In  the  latter  case  Lords 
Halsbury  and  Davey  expressed  the  opin- 
ion that  the  question  of  dependency  was 
to  be  decided  without  respect  to  the  stand- 
ard of  living  in  the  neighborhood  or  the 
class  to  which  the  family  belong;  that  the 
act  sets  up  no  such  standard;  and  that 
the  actual  means  of  living  and  expendi- 
ture need  alone  be  regarded.  Lord  Shand 
did  not  agree  with  this  view. 

The  latter  case  was  followed  by  French 
v.  Underwood  (1903)  19  Times  L.  R.  (Eng.) 
416. 

In  Howells  v.  Vivian  (1901)  85  L.  T. 
N.  S.  (Eng.)  529,  4  W.  C.  C.  106,  Collins, 
M.  R.,  said:  "It  seems  to  me  to  be  diffi- 
cult to  approach  the  question  of  depend- 
ency, as  a  matter  of  law,  without  taking 
some  standard  of  living  as  a  guide.  There 


122 


WORKMEN'S  COMPENSATION. 


nify  a  person  who  merely  derived  a 
benefit  from  the  earnings  of  the  injured 
workman.26  Similarly  it  is  held  there 
may  be  a  "dependency"  for  the  purposes 
of  the  act,  although  the  claimant  is  able 
to  maintain  himself  and  family  without 
the  assistance  of  the  deceased.27 

Dependency  under  the  statute  is  whol- 
ly a  question  of  fact.28  There  is  no  pre- 
sumption of  dependency  in  the  case  of  a 
wife,29  nor  in  the  case  of  minor  chil- 
dren.30 So,  whether  or  not  parents  are 


partially  dependent  upon  a  son's  wages 
is  a  question  of  fact,  and  the  finding  of 
the  county  judge  will  not  be  disturbed 
if  there  is  any  evidence  to  support  it.81 

Dependency  within  the  meaning  of  the 
act  is  not  to  be  tested  solely  by  the  legal 
liability  to  render  support.32  So,  the 
mere  fact  that  a  husband  is  under  obli- 
gations to  support  his  wife  does  not 
necessarily  make  the  wife  a  depend- 
ent.33 And  a  widow  who  lived  with  and 
was  entirely  supported  by  an  unmar- 


must  be  some  standard  with  regard  to 
the  class  of  persons  with  whom  the  act 
deals,  and  their  comfortable  maintenance." 

26  Simmons  v.  White  (1899)  80  L.  T. 
(Eng.)  N.  S.  344,  [1899]  1  Q.  B.  1007,  6» 
L.  J.  Q.  B.  N.  S.  507,  47  Week.  Rep.  513, 
15  Times  L.  R.  263. 

27Howells  v.  Vivian  (1901)  18  Times 
L.  R.  (Eng.)  36,  50  Week.  Rep.  163,  85 
L.  T.  N.  S.  529,  4  W.  C.  C.  106.  Matthew, 
L.  J.,  said:  "The  county  court  judge  seems 
to  have  laid  down  a  rule  of  law  which 
excluded  from  consideration  the  question 
whether  the  wages  of  the  deceased  were 
part  of  the  income  or  means  of  living  of 
the  family  because  the  whole  family  could 
be  maintained  without  those  wages.  It 
never  was  intended  that  the  county  court 
judge  should  in  every  case  inquire  criti- 
cally into  the  standard  of  living,  and  say 
whether,  with  the  earnings  of  the  deceased 
workman,  the  family  was  above  or  below 
that  standard.  I  agree  that  it  is  not 
decisive  of  the  question  of  dependency  that 
the  deceased  workman  did  contribute  to 
the  family  fund,  or,  on  the  other  hand, 
that  the  father  could  support  the  family 
without  that  contribution." 

88  Lee  v.  The  Bessie  [1912]  1  K.  B. 
(Eng.)  83,  [1911]  W.  N.  222,  105  L.  T. 
N.  S.  659,  5  B.  W.  C.  C.  55,  81  L.  J.  K.  B. 
N.  S.  114,  12  Asp.  Mar.  L.  Gas.  89,  Ann. 
Cas.  1913E,  477. 

The  widow  of  a  deceased  workman  may 
be  found  to  be  partially  dependent  upon 
•the  deceased's  earnings,  where  it  appeared 
that,  at  the  time  of  the  accident,  she  was 
disabled  and  unable  to  earn  anything,  al- 
though she  had  formerly  earned  wages, 
and  the  wages  of  the  deceased  were  not 
sufficient  to  support  them  both.  Smith  v. 
Cope  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  460, 

6  B.  W.  C.  C.  569. 

A  daughter  who  kept  house  for  her 
father,  who  was  the  tenant  and  owned 
the  furniture,  may  be  wholly  dependent 
upon  his  earnings  although  she  had  a  lodger, 
the  profit  from  whom  amounted  to  4  or  b 
shillings  per  week.  Marsh  v.  Boden  (1905) 

7  W.   C.   C.    (Eng.)    110.      The   court   held 
that   the   profit   from   the  lodger   was   part 
of    the    father's    earnings,   since    he    owned 
the   furniture  and  was   the  tenant. 

29  New  Monckton  Collieries  v.  Keeling 
[1911]  A.  C.  (Eng.)  648,  80  L.  J.  K.  B. 
N.  S.  1205,  105  L.  T.  N.  S.  337,  27  Times 
L.  R.  551,  55  Sol.  Jo.  687,  4  B.  W.  C.  0. 
332,  overruling  Williams  v.  Ocean  Coal  Co. 
L.R.A.1916A. 


[1907]  2  K.  B.  (Eng.)  422,  76  L.  J.  K.  B. 
N.  S.  1073,  97  L.  T.  N.  S.  150,  23  Times 
L.  R.  584. 

The  House  of  Lords'  decision  must  also 
be  considered  as  overruling  a  decision  of 
the  Irish  court  of  appeal  to  the  effect 
that  the  presumption  that  the  wife  is  wholly 
dependent  upon  her  husband  is  not  rebutted 
by  proof  that,  at  the  time  of  his  death, 
he  was  confined  in  an  asylum  as  a  danger- 
ous lunatic,  and  was  maintained  by  the 
asylum  authorities.  Kelly  v.  Hopkins 
[1908]  2  I.  R.  (Ir.)  84. 

Dependency  is  a  question  of  fact,  and 
there  is  no  question  of  any  presumption 
of  law  that  a  widow  is  dependent  upon 
|  earnings  of  her  husband  at  the  time  of 
his  death.  Polled  v.  Great  Northern  R.  Co. 
(1912)  5  B.  W.  C.  C.  (Eng.)  620. 

30  Lee  v.  The  Bessie  [1912]  1  K.  B.  (Eng.) 
83,   81   L.   J.   K.   B.   N.   S.    114,   105   L.   T. 
N.    S.    659,    [1911]    W.    N.    222,    12    Asp. 
Mar.    L.    Cas.    89,    [1912]    W.    C.   Rep.    58, 
5   B.   W.   C.   C.   55,   Ann.    Cas.   1913E,  477, 
approving  Briggs  v.  Mitchell    [1911]    S.  C. 
705,    48    Scot.    L.    R.    606,   4    B.    W.    C.    C. 
400. 

31  Turner  v.  Miller   (1910)   3  B.  W.  C.  C. 
(Eng.)    305;   Robertson  v.  Hall  Bros.  S.  8. 
Co.   (1910)   3  B.  W.  C.  C.   (Eng.)   368. 

The  county  court  judge  may  treat  a 
mother  as  partially  rather  than  wholly 
dependent  upon  the  earnings  of  her  son. 
although  her  sole  support  was  such  earn- 
ings, together  with  the  sum  of  6  shillings 
a  week  earned  by  each  of  her  two  daughters. 
Ford  v.  Oakdale  Colliery  Co.  (1915)  8  B. 
W.  C.  C.  (Eng.)  127. 

32  Dependency    is    a    question    of    actual 
fact,   and   that   actual    fact   is   not   settled 
by  a  consideration  of  the  legal  proposition 
of  obligation  of  either  the  husband  to  the 
wife,  or  the  parent  to  the  child.     Dobbies 
v.  Egypt  &  L.  S.  S.  Co.   [1913]   S.  C.  364, 
BO   Scot.   L.   R.   222,    [1913]    W.   C.   &   Ins. 
Rep.    75,    6    B.    W.    C.    C.    348. 

See  also  Lee  v.  The  Bessie  [1912]  1 
K.  B.  (Eng.)  83,  81  L.  J.  K.  B.  N.  S.  114, 
105  L.  T.  N.  S.  659,  5  B.  W.  C.  C.  55, 
[1911]  W.  N.  222,  12  Asp.  Mar.  L.  Cas. 
89,  [1912]  W.  C.  Rep.  58,  Ann.  Cas.  1913E, 
477. 

33  Where    a    wife    has    not,    for    twenty 
years    previous    to    a    man's    death,    lived 
with   him   of   been   supported   in   any   way 
by  him,  she  is  not  a  dependent  upon  him. 
New  Monckton  Collieries  v.  Keeling  [1911] 
A.   C.    (Eng.)    648,   80  L.  J.  K.  B.   N.   S. 


WHO  ARE  DEPENDENTS. 


123 


ried  son  was  wholly  dependent  upon  him, 
notwithstanding  her  right  to  relief  from 
four  other  sons,  who  were  married,  and 
who  did  not  contribute  to  her  support.34 
A  woman  may  be  dependent  upon  her 
sons  as  well  as  upon  her  husband  where 
the  earnings  of  all  went  into  a  common 
fund  out  of  which  the  family  was  sup- 
ported. The  application  of  this  prin- 
ciple works  to  the  advantage  of  the  de- 
pendents, in  a  case  where  both  the  father 
and  a  contributing  son  were  killed  in  the 
same  accident,35  and  where  the  son  or 
other  contributing  member  of  the  family 
only  was  killed  by  accident.36  But  it 
may  work  to  the  die  dvantage  of  the  de- 
pendent where  the  father  only  was  killed, 
since,  according  to  this  view,  the  mother 


and  dependent  children  are  not  to  be 
considered  wholly,  but  only  partially,  de- 
pendent upon  him.37  A  father  earning 
wages  may  be  "in  part  dependent"  upon 
the  earnings  of  his  child,  within  the 
meaning  of  the  act;  and  there  is  evi- 
dence upon  which  the  father  may  be 
found  to  be,  in  fact,  so  dependent,  and  to 
be  entitled  to  compensation  for  the  death 
of  the  child,  where  it  is  proved  that  the 
child  contributed  to  the  family  fund, 
and  that  the  father  received  the  con- 
tribution and  spent  it  in  maintaining 
himself  and  his  family.38 

The  mere  fact  that  a  man  has  deserted 
his  family  does  not  preclude  them  from 
recovering  compensation  for  his  death;39 
and  the  fact  that  a  workman  had,  when 


1205,  105  L.  T.  N.  S.  337,  27  Times  L.  R. 
551,  55  Sol.  Jo.  687,  4  B.  W.  C.  C.  332. 

34Rintoul  v.  Dalmeny  Oil  Co.  [1908]  S. 
C.  (Scot.)  1025. 

85  Where  a  father  and  two  sons,  all 
killed  in  one  accident,  paid  their  wages 
in  a  common  fund  for  the  support  of  the 
family,  the  mother  and  the  surviving  chil- 
dren are  .entitled  to  receive  compensation 
in  respect  to  the  death  of  each  of  the 
deceased.  Hodgson  v.  West  Stanley  Col- 
liery [1910]  A.  C.  (Eng.)  229,  79  L.  J. 
K.  B.  N.  S.  356t  102  L.  T.  N.  S.  194,  26 
Times  L.  R.  333,  54  Sol.  Jo.  403,  3  B.  W. 
C.  C.  260,  392,  47  Scot.  L.  R.  881. 

36  McLean  v.  Moss  Bay  Hematite  Iron 
&  Steel  Co.  (H.  L.)  [1910]  W.  N.  (Eng.) 
102,  54  Sol.  Jo.  441,  3  B.  W.  C.  C.  402, 
where  a  mother  sought  and  was  allowed 
compensation  for  the  death  of  a  son  who 
put  his  wages  into  the  common  household 
fund,  although  the  mother  lived  with  her 
husband  and  was  also  dependent  upon  his 


Toole  v.  The  Isle  of  Erin  (1909)  3  B.  W. 
C.  C.  (Eng.)  110,  where  the  court  took  the 
position  that  the  wife  cannot  be  wholly 
dependent  upon  her  husband  and  partially 
dependent  upon  a  brother,  for  whose  death 
compensation  was  sought,  is  overruled  in 
effect  by  Hodgson  v.  West  Stanley  Colliery 
Co. 

37  The    effect    of    the    decisions    cited    in 
the    two    preceding    notes    is    to    overrule 
Senior  v.  Fountains   [1907]   2  K.  B.   (Eng.) 
563,   76   L.   J.   K.   B.   N.    S.   928,   97    L.    T. 
N.    S.    562,    23    Times    L.    R.    634,    where 
it    was    held    that    a    widow    and    children 
of  a  workman  were  none  the  less  "wholly 
dependent   upon   his   earnings   at   the   time 
of  his  death"  because  he  had  been  enabled 
through  the  receipt  by  him,  either  directly 
or  through  his  wife  as  his  agent,  of  mon- 
eys  from   wage  earning  sons,   or  of   mon- 
eys coming  to  him  through  other  channels, 
to  augment  the  fund  out  of  which  he  was 
legally  bound  to  maintain,  and  had  main- 
tained,  his   household. 

38  Main    Colliery    Co.    v.    Davies    [1900] 
A.   C.    (Eng.)    358,   69   L.   J.    Q.   B.   N.   S. 
755,   83    L.   T.   N.    S.    83,    16   Times   L.    R. 
L.R.A.1916A. 


460,  65  J.  P.  20.  This  decision  embodies 
a  doctrine  similar  to  that  adopted  in  an 
earlier  case,  in  which  it  was  held  that  a 
finding  of  "dependency"  was  sufficiently 
supported  by  evidence  that  the  parents  of 
an  employee  fourteen  years  old,  who  was 
killed,  had  received  his  weekly  wages  for 
five  weeks  before  his  death,  and  handed 
over  to  him  such  pocket  money  as  they 
thought  right.  Simmons  v.  White  Bros. 
[1899]  1  Q.  B.  (Eng.)  1005,  68  L.  J.  Q.  B. 
N.  S.  507,  47  Week.  Rep.  513,  80  L.  T. 
N.  S.  344/15  Times  L.  R.  263. 

39  Minor  children  may  be  found  to  be 
wholly  dependent  upon  the  earnings  of 
their  father  where  he  had  deserted  his 
wife  and  family,  and  for  two  years  had 
made  but  small  payments,  amounting  in 
all  to  £2,  for  their  support,  and  there- 
after, the  payments  having  ceased,  the 
wife  obtained  a  decree  against  him  for 
alimony,  and  recovered  about  7  shillings 
from  his  employers  by  arrestment  used  on 
the  decree,  and  the  workman  then  dis- 
appeared and  was  not  subsequently  traced 
until  his  death.  Young  v.  Niddrie  &  B. 
Coal  Co.  [1913]  A.  C.  (Eng.)  531,  82  L.  J. 
P.  C.  N.  S.  147,  109  L.  T.  N.  S.  568,  29 
Times  L.  R.  626,  57  Sol.  Jo.  685,  [1913] 
W.  N.  206,  [1913]  W.  C.  &  Ins.  Rep.  547, 
6  B.  W.  C.  C.  774,  [1913]  S.  C.  66,  50 
Scot.  L.  R.  744,  reversing  [1912]  S.  C.  644, 
49  Scot.  L.  R.  518,  5  B.  W.  C.  C.  552. 

It  is  not  a  correct  proposition  in  law 
that  when  it  is  found  that,  as  a  matter 
of  fact,  a  father  has  deserted  his  children 
for  three  years,  and  paid  nothing  toward 
their  support  during  that  period,  that  nec- 
essarily ends  the  matter,  and  his  employer 
I  is  not  liable  to  pay  compensation  to  his 
children.  Dobbies  v.  Egypt  &  L.  S.  S.  Co. 
[1913]  S.  C.  364,  50  Scot.  L.  R.  222,  [1913] 
W.  C.  &  Ins.  Rep.  75,  6  B.  W.  C.  C.  348. 

Although  a  workman  had  turned  his  wife 
out  of  doors,  and  she  had  lived  separate 
from  him  for  eleven  years,  receiving  no 
support  from  him,  she  may  be  found  to 
be  wholly  dependent  upon  him.  Medler 
v.  Medler  (1908;  C.  C.)  124  L.  T.  Jo. 
(Eng.)  410,  1  B.  W.  C.  C.  332. 


124 


WORKMEN'S  COMPENSATION. 


out  of  work,  left  his  wife,  and  remained 
away  until  his  death,  some  time  after- 
wards, does  not  prevent  her  from  be- 
ing "dependent"  upon  him.40  But  a 
deserted  wife  may,  by  her  conduct,  estop 
herself  from  claiming  to  be  a  depend- 
ent.41 

A  posthumous  child  may  be  a  "depend- 
ent" within  the  act.42  So,  a  child  en 
ventre  sa  mere  may  be  a  dependent  upon 
the  earnings  of  its  father,  although  in- 
directly through  its  mother.43  Illegiti- 
mate children  may  be  dependents  within 
the  sense  of  the  act;  and  this  is  so  even 
if  they  are  posthumous.44  Evidence  of 
statements  by  a  deceased  workman  that 
he  was  the  father  of  an  illegitimate  child, 


born  after  his  death,  and  that  he  would 
marry  the  mother  before  the  child  was. 
born,  is  admissible  to  show  both  pater- 
nity and  dependency  of  the  child.45  Such 
children,  however,  may  be  shown  as  a 
matter  of  fact  not  to  be  dependents.48 
An  illegitimate  child  of  a  workman  can- 
not recover  compensation  for  his  death 
in  excess  of  what  he  would  have  been 
obliged  to  give  under  a  decree  of  affilia- 
tion and  aliment,  in  the  absence  of  any 
proof  that  the  deceased  had  ever  con- 
tributed to  the  child's  support  in  excess 
of  what  he  was  required  to  by  the  de- 
cree.47 A  woman  is  not  entitled  to  com- 
pensation for  the  death  of  a  man  with 
whom  she  had  cohabited  for  a  period  of 


40Coulthard  v.  Consett  Iron  Co.  [1905] 
2  K.  B.  (Eng.)  869,  22  Times  L.  R.  25, 
75  L.  J.  K.  B.  N.  S.  60,  54  Week.  Rep. 
139,  93  L.  T.  N.  S.  756. 

The  fact  that  a  workman  who,  being 
out  of  work  in  Scotland,  went  to  Ireland, 
and  obtained  employment  there,  had  not 
contributed  anything  to  the  support  of  his 
wife  for  several  months  while  he  was  out 
of  work,  during  which  time  she  was  sup- 
ported by  her  father,  does  not  prevent  her 
and  a  posthumous  child  from  being  depend- 
ents, where,  prior  to  the  time  he  was  out 
of  work,  he  had  supported  her,  and  he 
had  been  at  work  but  little  over  a  week 
when  he  was  killed.  Reg.  v.  Clarke  [1906] 
2  L  B.  (Ir.)  135. 

*l  As  where  the  wife  left  her  husband 
more  than  twenty  years  before  his  death, 
and  had  supported  herself  out  of  her  earn- 
ings. New  Monckton  Collieries  v.  Keeling 
[1911]  A.  C.  (Eng.)  648,  80  L.  J.  K.  B. 
N.  S.  1205,  105  L.  T.  N.  S.  337,  27  Times 
L.  R.  551,  55  Sol.  Jo.  687,  4  B.  W.  C.  C. 
332. 

Where  a  woman  deliberately,  of  her  own 
choice,  separated  from  her  husband,  and  a 
daughter  deliberately,  of  her  own  choice, 
went  with  the  mother,  and  the  mother  had 
property  of  her  own,  and  the  husband 
never  contributed  toward  the  maintenance 
of  either  of  them,  they  are  not  dependent 
upon  him  within  the  meaning  of  the  act. 
Polled  v.  Great  Northern  R.  Co.  (1912)  5 

B.  W.    C.    C.    (Eng.)    620,    former    appeal, 
5   B.   W.   C.   C.   115. 

Where  a  wife  had  been  deserted  for  a 
number  of  years,  and  subsequently  lived 
with  another  man,  neither  she  nor  their 
children  can  be  considered  dependents.  Lee 
v.  The  Bessie  [1912]  1  K.  B.  (Eng.)  83 
[1911]  W.  N.  222,  105  L.  T.  N.  S.  659, 
81  L.  J.  K.  B.  N.  S.  114,  5  B.  W.  C.  C. 
55,  12  Asp.  Mar.  L.  Cas.  89,  [1912]  W. 

C.  Rep.  58,  Ann.  Cas.  1913E,  477. 

42  Williams  v.  Ocean  Coal  Co.  [1907]  2 
K.  B.  (Eng.)  422,  76  L.  J.  K.  B.  N.  S. 
1073,  97  L.  T.  N.  S.  150,  23  Times  L.  R. 
584. 

« Day  v.  Markham  (1904;  C.  C.)  39  L. 
J.  (Eng.)  164,  6  W.  C.  C.  115. 

44  A  child  en  ventre  sa  mere  is  a  "de- 
L.R.A.19J6A. 


pendent"  of  the  man  who  admits  that  he 
is  the  father,  and  who  had  promised  to- 
marry  the  mother.  Orrell  Colliery  Co.  v. 
Schofield  [1909]  A.  C.  (Eng.)  433,  78  L.  J. 
K.  B.  N.  S.  677,  100  L.  T.  N.  S.  786,  25- 
Times  L.  R.  569,  53  Sol.  Jo.  518,  aflirm- 
ing  [1908]  W.  N.  243,  25  Times  L.  R. 
106,  53  Sol.  Jo.  117. 

In  Bowhill  Coal  Co.  v.  Neish  [1909]  S. 
C.  252,  46  Scot.  L.  R.  250,  where  the  mother 
of  an  illegitimate  child  had  obtained  a  de- 
cree for  aliment  against  the  father,  tmt 
nothing  had  been  actually  paid  thereon, 
the  court  rejected  the  C9ntention  of  the 
defendant  that,  inasmuch  as  no  actual  mon- 
ey of  the  deceased  was  proved  to  have 
been  actually  spent  upon  the  child,  the 
child  could  not  be  said  to  be  dependent 
on  him. 

45  Lloyd   v.    Powell    Dutfryn    Steam   Coal 
Co.    (H.   L.)    [1914]    A.  C.    (Eng.)    733.  Ill 
L.  T.  N.  S.  388,  83  L.  J.  K.  B.  N.  S.  1054, 
30  Times  L.  R.  456,  58  Sol.  Jo.  514,  7  B. 
W.    C.    C.    330,    reversing    [1913]    2    K.    B. 
130,   82   L.  J.   K.   B.   N.   S.   533,   108   L.  T. 
N.  S.  201,  29  Times  L.  R.  291,  57  Sol.  Jo. 
301,  [1913]  W.  N.  51,  [1913]  W.  C.  &  Ins. 
Rep.  355,  6  B.  W.  C.  C.  142. 

46  An  illegitimate  child  who  at  its  birth 
had    been    taken    over   by    another    woman 
and    supported    by    her    and    her    husband, 
except   for   a   small   sum   of   money   and   a 
little    clothing,    is    not    a    dependent    upon 
her   mother.     Briggs  v.   Mitchell    [1911]    S. 
C.  705,  48  Scot.  L.  R.  606,  4  B.  W.  C.  C. 
400. 

And  the  husband  of  the  mother  ol  an 
illegitimate  son,  who  is  not  the  latter's 
putative  father,  is  not  a  "dependent,"  al- 
though the  son's  earnings  were  put  into 
a  common  fund  for  the  support  of  the 
family.  McLean  v.  Moss  Bay  Iron  &  Steel 
Co.  [1909]  2  K.  B.  (Eng.)  521,  78  L.  J. 
K.  B.  N.  S.  849,  100  L.  T.  N.  S.  871,  25- 
Times  L.  R.  633.  This  decision  was  reversed 
by  the  House  of  Lords,  but  on  another 
point.  See  note,  36  supra.  See  the  deci- 
sion of  the  House  of  Lords  on  another 
phase  of  this  case,  note  36,  supra.  There- 
was  no  appeal  by  the  husband. 

47Gourlay  v.  Murray  [1908]  S.  C.  769, 
45  Scot.  L.  R.  577,  1  B.  W.  C.  C.  335.. 


WHO  ARE  DEPENDENTS. 


125 


ten  and  one-half  months,  they  holding 
themselves  out  as  man  and  wife,  where 
the  evidence  shows  that  there  was  some 
talk  of  having  the  marriage  ceremony 
performed,  but  the  man  wished  to  have 
it  postponed  until  he  was  in  better  cir- 
cumstances, and  upon  the  birth  of  a  post- 
humous child  the  mother  had  it  registered 
as  illegitimate.48 

A  person  confined  in  a  prison  is  not 
a  dependent  upon  her  son.49  So,  an  in- 
mate of  a  workhouse  to  whose  support 
the  injured  workman  does  not  in  tact 
contribute  anything  is  not  a  "depend- 
ent" within  the  meaning  of  the  act,  al- 
though a  liability  under  the  poor  law 
to  contribute  to  his  support  could  be 
enforced  against  the  workman.50  To 
the  extent  to  which  a  mother  was  sup- 
ported by  the  guardians  of  the  poor,  she 
is  not  dependent  upon  her  son.51 

It  is  not  necessary  that  the  support  be 
furnished  regularly  by  the  workman  to 
render  the  recipient  a  dependent.52 

In  the  case  of  the  death  of  a  work- 
man, leaving  dependents,  the  test  by 
which  to  determine  whether  they  were 
"wholly  dependent  on  his  earnings  at  the 
time  of  his  death,  within  the  meaning 
•of  the  act,  is  whether  money  which  the 
workman  was  earning  at  the  time  of  his 
death  'was  the  sole  source  to  which  they 
•could  look  for  maintenance  at  that  time. 
Accordingly  the  fact  that  money  came  to 
them  on  the  death  of  the  workman  can- 
not be  taken  into  consideration.53 


Upon  the  question  whether  alien  de- 
pendents residing  abroad  are  within  the 
purview  of  the  English  act,  see  the  de- 
cision of  the  House  of  Lords  construing 
the  British  Columbia  act,  cited  in  note 
64,  infra. 

2.  In  Scotland  under  the  act  of  1891. 

Under  the  act  of  1897,  dependents  in 
j  Scotland  included  "such  of  the  persons 
i  entitled  according  to   the  law  of   Scot- 
I  land  to  sue  the  employer  for  damages  or 
solatium  in  respect  of  the  death  of  the 
workman  as  were  wholly  or  in  part  de- 
I  pendent  upon  the  earnings  of  the  work- 
i  man  at  the  time  of  his  death."    As  the 
provisions  in  the  earlier  act  relative  to 
Scotland  differ  from  those  applying  in 
England    and    Ireland,    the    Scotch    de- 
cisions under  that  act  are  discussed  sepa- 
i  rately. 

The  mother  of  a  deceased  workman, 
whose  parents  were  in  part  dependent 
on  him,  is  not  entitled  to  sue,  where 
the  father  is  alive.54  Grandchildren  are 
entitled  to  claim  compensation  for  the 
death  of  their  grandfather,  in  cases 
where  their  father  is  dead.55  An  illegiti- 
mate child  has  no  right  to  sue  the  em- 
ployer of  his  deceased  mother.56  A 
woman  living  separate  from  a  husband 
who  only  contributed  a  small  sum  to  her 
support,  the  rest  of  her  sustenance  being 
obtained  from  relatives,  and  occasional 
j  employment,  may  claim  compensation 
'  for  his  death.57  But  if,  as  a  matter  of 


48  Fife    Coal    Co.    v.    Wallace    [1909]    S. 
C.  682,  46  Scot.  L.  R.  727,  2  B.  W.  C.  C. 
264. 

49  A  widow  who  at  the  date  of  her  son's 
•death   was   undergoing   a    sentence   of   con- 
finement in  a  state  reformatory  for  inebri- 
ates, and  during  the   four  years  preceding 
had  been   in   prison   with   the   exception   of 
ten    months,    and    during    that    period    had 
occasionally    earned    a    little    by    outdoor 
work,  but  was  otherwise  entirely  dependent 
upon  her   son,  who  had  contributed  5s.  or 
6s.  a   week   towards   her  support,  was  not 
wholly  or  partially  dependent  on  her  son's 
earnings  at  the   time  of  his  death,  within 
the    meaning   of   the   act.      Addie    &    Sons' 
Collieries  v.  Trainer  (1904)  7  Sc.  Sess.  Cas. 
5th  series  (Scot.)  115. 

60  Rees  v.  Penrikyber  Nav.  Colliery  Co. 
[1903]  1  K.  B.  (Eng.)  259,  72  L.  J.  K.  B. 
N.  S.  85,  67  J.  P.  231,  51  Week.  Rep. 
247,  87  L.  T.  N.  S.  661,  19  Times  L.  R. 
113,  1  L.  G.  R.  173. 

The  wife  of  a  workman  who  had  de- 
serted her,  and  who  did  not  furnish  support 
for  her  for  seven  years,  who  was  obliged 
to  go  to  the  workhouse,  is  not  a  dependent. 
Devlin  v.  Pelaw  Main  Collieries  (1912)  5 
B.  W.  C.  C.  (Eng.)  349. 

SlByles  v.  Pool  (1908;  C.  C.)  126  L.  T. 
L.R.A.1916A. 


Jo.    (Eng.)    287,  73  J.  P.  104,  53   Sol.  Jo. 
215,  2  B.  W.  C.  C.  484. 

52  Where    parents    received    money    from 
time  to  time  from  their  deceased  son  dur- 
ing his  lifetime,  they  may  be  found  to  be 
dependent,  although  there  was  no  evidence 
that  the  money  was  sent  at  regular  inter- 
vals or  in  fixed  amounts.     Follis  v.  Schaake 
Mach.    Works    (1908)    13   B.    C.   471,   1   B. 
W.  C.  C.  442. 

53  Pryce  v.  Penrikyber  Nav.  Colliery  Co. 
[1902]   1  K.  B.  (Eng.)   221,  85  L.  T.  N.  S. 
477,    18    Times   L.   R.    54,   71    L.   J.    K.    B. 
N.  S.  192,  66  J.  P.  198,  50  Week.  Rep.  197. 

54  Barrett  v.  North  British  R.  Co.  (1899) 
1   Sc.   Sess.  Cas.  5th   series,  1139,  36  Scot. 
L.  R.  874,  7  Scot.  L.  T.  88. 

55Hanlin  v.  Melrose  (1899)  1  Sc.  Sess. 
Cas.  5th  series,  1012,  36  Scot.  L.  R.  814, 
7  Scot.  L.  T.  67;  Cooper  v.  Fife  Coal  Co. 
[1906-07]  S.  C.  (Scot.)  564  (grandchild's 
mother  was  dead,  and  whereabouts  of  father 
unknown). 

56  Clement  v.  Bell   (1899)   1  Sc.  Sess.  Cas. 
5th  series,  924,  36  Scot.  L.  R.  725,  7  Scot. 
L.  T.  44. 

57  Cunningham  v.  M'Gregor    (1901)   3  ac. 
Sess.   Cas.   5th   series,   775,   38   Scot.   L.   R. 
574,  9  Scot.  L.  T.  36. 

Cunningham  v.  M'Gregor  was  followed  in 


126 


WORKMEN'S  COMPENSATION. 


fact,  the  wife  receives  nothing  at  all 
from  her  husband  who  has  left  her,  then 
she  is  not  dependent  upon  him.68  A 
woman  deserted  by  her  husband,  having 
no  title  to  sue  for  damages  or  solatium 
for  the  death  of  her  son,  has  no  title 
to  claim  compensation  under  the  act  as 
a  dependent  upon  him.69 

The  fact  that  the  father  of  the  de- 
cedent was  assisting  a  crippled  relative 
does  not  show,  as  a  matter  of  law,  that 
he  was  not  "partially  dependent"  on  his 
son's  earnings.60  A  parent  who  has  a 
wage  sufficient  for  his  support  is  not  a 
dependent  merely  because  some  member 


of  his  family  had  been  in  the  way  of  giv- 
ing him  presents  of  money.61  A 
daughter  who  keeps  house  for  her  father 
may  be  dependent  upon  him.68 

3.  In  the  Colonies. 

The  court  of  appeal  of  British  Colum- 
bia has  held  that  alien  dependents  resid- 
ing abroad  are  not  within  the  purview  of 
the  provincial  act.63  But  the  House  of 
Lords,  to  which  an  appeal  was  taken, 
upheld  the  right  of  alien  dependents  to 
recover,  as  they  were  not  within  the 
exceptions  contained  in  the  act.64 

In  order  to  recover  under  the  British 


Sneddon  v.  Addie  &  Sons'  Collieries  (1904) 
6  Sc.  Sess.  Cas.  5th  series,  992,  41  Scot. 
L.  R.  826,  12  Scot.  L.  T.  229,  where  it 
was  held  that  a  woman  unable  to  do  any- 
thing for  her  own  support  is  entitled  to 
compensation  for  the  death  of  her  hus- 
band, although  he  had  deserted  her. 

The  wife  of  a  foreigner  who  came  to 
Scotland,  and  during  eight  months'  resi- 
dence forwarded  her  the  sum  of  £1,  may 
be  found  to  be  a  "dependent,"  but  not 
wholly  dependent  upon  her  husband,  where 
she  supported  herself  in  part  by  earnings 
as  an  outdoor  laborer  at  a  small  wage. 
Baird  v.  Birsztan  (1906)  8  Sc.  Sess.  Cas. 
5th  series  (Scot.)  438. 

58  Where  a  wife  voluntarily    left  her  hus- 
band, and  a  month  afterwards  gave  birth 
to  a  child,  and  subsequently,  by  means  of 
her  earnings  as  a  weaver,  and  the  assist- 
ance of  the  relatives  with  whom  she  lived, 
she  supported  herself  and  her  child,  never 
asking  for  and  never  receiving  aliment  from 
her  husband,  it  cannot  be  said  that  either 
the  wife  or  the  child  were  either  wholly  or 
in  part  dependent  upon  the  earnings  of  the 
workman  at  the  time  of  his  death,  twelve 
years    after    the    separation.      Lindsay    v. 
M'Glashen   [1908]   S.  C.  762,  45  Scot.  L.  R. 
559;    Turners    v.    Whitefield    (1904)    6    Sc. 
Sess.   Cas.   5th   series,   822,   41   Scot.   L.   R. 
631,   12   Scot.   L.   T.   131,   followed. 

A  woman  who  has  been  for  fourteen 
years  living  apart  from  her  husband,  and 
was  supported  by  an  illegitimate  son,  is 
not  wholly  or  in  part  dependent  on  the 
earnings  of  her  husband,  and  is  not  entitled 
to  compensation.  Turners  v.  Whitefield 
(Scot.)  supra. 

59  Campbell    v.    Barclay,    Curie    &    Coy 
(1904)     6    Sc.    Sess.    Cas.    5th    series,    371, 
41   Scot.  L.   R.   289,   11   Scot.  L.   T.   682. 

60Legget  v.  Burke  (1902)  4  Sc.  Sess. 
Cas.  5th  series,  693,  39  Scot.  L.  R.  448, 
9  Scot.  L.  T.  518. 

eiArrol  v.  Kelly  (1906)  8  Sc.  Sess.  Cas. 
5th  series  (Scot.)  906  (son  had  made  pay- 
ments to  his  father  which  averaged  10  s. 
weekly;  father's  average  weekly  income  was 
£1,  4s.  lid). 

62  The  daughter  of  a  workman,  who  had 
been  previously  earning  wages,  but  who 
after  her  mother's  death  remained  at  home 
to  keep  her  father's  house,  getting  from 
L.R.A.1936A. 


him  board,  lodging,  and  clothing,  but  no 
wages,  is  a  dependent  in  the  sense  of  the 
act.  Moynes  v.  Dixon  (1905)  7  Sc.  Sess. 
Cas.  5th  series  (Scot.)  386.  Lord  M'Laren 
said:  "If  it  had  been  meant  that  the  right 
was  to  be  limited  to  those  who  were  in 
the  position  to  sue  an  action  for  aliment,, 
it  would  have  been  very  easy  to  say  so, 
or  if  it  had  been  meant  to  exclude  those 
who  were  earning  wages  for  themselves, 
that  again  could  have  been  very  shortly 
and  definitely  expressed  in  the  statute. 
.  .  .  But  the  analogy  of  an  alimentary 
claim  is  not  suggested  by  anything  in 
the  statute, — the  condition  of  total  or  par- 
tial dependence  upon  a  man  at  the  time 
of  his  death  introduces  an  idea  wholly 
foreign  to  the  common  law.  I  can  'see  no 
other  construction  for  this  provision  except 
that  the  ground  of  liability  is  whether  the 
wages  of  the  workman  at  the  time  of  hi» 
death  were  in  fact  applied  to  the  mainte- 
nance of  the  person  who  is  making  the 
claim."  Lord  Ardwell  observed  that  "it 
would  be  establishing  a  very  hard  precedent, 
and  a  precedent  that  might  work  very 
badly  in  practice,  to  say  that  a  daughter 
who  acts  as  the  appellant  did  here  shall 
not  only  lose  the  opportunity  of  saving 
money,  but  shall  have  no  claim  under 
this  act  in  respect  of  her  father's  death. 

63Krzus  v.  Crow's  Nest  Pass  Coal  Co. 
(1911)  16  B.  C.  120,  17  West.  L.  Rep. 
(Can.)  687. 

McDonald,  Ch.  J.  and  Galliher,  J.,  con- 
sidered that  the  scheme  of  the  act  was 
to  shift  the  onus  of  providing  for  the 
destitute  from  the  state  to  the  employer; 
and  as  nonresident  aliens  could  not  become 
a  burden  on  the  state,  it  ought  not  to  be 
inferred,  notwithstanding  the  general  lan- 
guage of  the  statute,  that  the  legislature 
intended  to  impose  an  obligation  on  the 
employer  to  compensate  aliens. 

64  [1912]  A.  C.  (Eng.)  590,  81  L.  J.  P. 
C.  N.  S.  227,  [1913]  W.  C.  &  Ins.  Rep. 
38,  107  L.  T.  N.  S.  77,  28  Times  L.  R. 
488,  56  Sol.  Jo.  632,  6  B.  W.  C.  C.  270, 
Ann.  Cas.  1912D,  859.  Lord  Atkinson, 
after  observing  that  the  sole  question  for 
decision  was  whether  the  fact  that  the 
widow  was  an  alien,  resident  in  Austria, 
prevented  the  plaintiff,  as  legal  representa- 
tive of  deceased,  from  recovering  compen- 


APPEALS  IN  SCOTLAND 


127 


Columbia  act  parents  must  show  that 
they  had  a  reasonable  expectation  of  pe- 
cuniary benefit  from  a  continuance  of  the 
life  of  the  workman.65 

Whether  a  woman  living  apart  from 
her  husband  is  dependent  upon  him  or 
not  is  a  question  of  fact  under  the  west- 
ern Australian  act.66 

Those  who  are  partially  dependent 
upon  the  injured  employee  are  left  by 
the  Quebec  act  to  their  remedy  under  the 
Civil  Code,  their  right  to  recover  con- 
tinuing to  be  subject  to  the  obligation 
to  prove  that  the  accident  was  attribut- 
able to  an  "offense,  or  quasi  offense,  of 
the  employer."  67 

XVI.  Appeals  in  Scotland  where  an  ac- 
tion is  raised  independently  of  the 
act  (§  14). 

a.  Text  of  §  14. 

Section  14.  In  Scotland,  where  a 
workman  raises  an  action  against  his 
employer,  independently  of  this  act,  in 
respect  of  any  injury  caused  by  ac- 
cident arising  out  of  and  in  the  course 
of  the  employment,  the  action,  if  raised 


in  the  sheriff  court  and  concluding  for 
damages  under  the  employers'  liability 
act  1880,  or  alternatively  at  common  law 
or  under  the  employers'  liability  act  1880, 
shall,  notwithstanding  anything  con- 
tained in  that  act,  not  be  removed  under 
that  act  or  otherwise  to  the  court  of  ses- 
sion, nor  shall  it  be  appealed  to  that 
court  otherwise  than  by  appeal  on  a  ques- 
tion of  law;  and  for  the  purposes  of 
such  appeal  the  provisions  of  the  second 
schedule  to  this  act  in  regard  to  an  ap- 
peal from  the  decision  of  the  sheriff  on 
any  question  of  law  determined  by  him 
as  arbitrator  under  this  act  shall  ap- 
ply [new]. 

b.  Effect  of  this  section. 

Section  14  of  the  act  provides  that  in 
Scotland,  where  a  workman  raises  an 
action  in  the  sheriff's  court  against  his 
employer  independently  of  the  act,  and 
concluding  for  damages  under  the  em- 
ployers' liability  act  of  1880,  or  alter- 
natively at  common  law  or  under  the 
employers'  liability  act  of  1880,  the  ac- 
tion shall  not  be  remitted  to  the  court 
of  sessions  except  upon  an  appeal  on  a 


sation  under  the  provincial  act,  since  he 
would  hold  it,  if  recovered,  for  her  benefit, 
said:  "It  is  not  insisted  that  the  provin- 
cial statute  shall  operate  extraterritorially. 
It  is  insisted  that  by  its  express  words 
it  imposes  on  the  employer  a  liability  to 
compensate  his  workmen  for  personal  in- 
juries by  accident  arising  out  of  and  in 
the  course  of  the  employment  which  he 
carries  on,  and  in  which  they  work.  Where 
that  employment  is  carried  on  in  the  prov- 
ince of  British  Columbia,  one  of  the  results 
of  this  intraterritorial  operation  of  the  stat- 
ute may,  the  respondents  admit,  possibly 
be  that  in  some  cases  a  nonresident  alien 
may  derive  a  benefit  under  it;  but  their 
Lordships  think  that  if  the  liability  thus 
expressly  imposed  is  to  be  cut  down  at 
all,  or  if  the  employer  is  to  be  relieved 
from  it  to  any  extent,  this  must  be  done 
either  by  some  provision  of  the  statute 
itself,  or  of  the  schedules  attached  to  it, 
either  expressed  or  to  be  clearly  implied, 
and  not  by  conjectures  as  to  the  policy 
of  the  act  not  suggested  by  its  language." 

In  Varesick  v.  British  Columbia  Copper 
Co.  (1906)  12  B.  C.  286,  the  judge  of  the 
county  court  apparently  assumed  that  alien 
dependents  residing  abroad  were  entitled 
to  compensation  under  the  act,  but  com- 
pensation was  denied  upon  the  ground  that 
it  was  not  shown  that  the  applicants  were 
dependents. 

65  In  Brown  v.  British  Columbia  Electric 
R.  Co.  (1910)  15  B.  C.  350,  there  was  evi- 
dence that  the  deceased  workman  had  on 
two  occasions  sent  money  to  his  parents 
in  a  foreign  country;  but  it  also  appeared 
that  they  had  in  the  first  instance  assisted 
him  by  advancing  money  for  his  passage 
L.R.A.1916A. 


to  Canada.  Held,  that  the  parents  were 
not  entitled  to  maintain  the  action  as  "de- 
pendents," inasmuch  as  they  had  failed  to 
show  that  they  had  'any  reasonable  expec- 
tation of  pecuniary  benefit"  from  the  de- 
ceased. 

To  the  same  effect,  Varesick  v.  British 
Columbia  Copper  Co.  (B.  C.)  supra. 

66  A  wife  who  had  been   separated  from 
her    husband    for    sixteen    years,   until    the 
time    when    she   spent   a    few   days    in   the 
same  house  with  him,  but  not  as  his  wife, 
and  who  for  a  considerable  portion  of  the 
period  of  separation  had  lived  in  adultery 
with  another  man,  is  not  a  dependent  upon 
the  husband.     Allan  v.  Oroya  Brownhill  Co. 
(1910)  12  West.  Australian  L.  R.  1. 

A  woman  living  apart  from  her  husband 
may  be  found  to  be  in  fact  dependent 
upon  the  earnings  of  a  deceased  son  who, 
with  several  other  sons,  had  lived  with 
her  and  contributed  to  her  support,  al- 
though her  husband  lives  in  the  same  town, 
and  she  has  never  taken  any  steps  to  pro- 
cure maintenance  from  him.  Kilgariff  v. 
Associated  Gold  Mines  (1910)  12  West. 
Australian  L.  R.  73. 

67  An  ascendant  of  whom  a  deceased  em- 
ployee was  not  "the  only  support"  is  not 
within    the    class    of    persons     (Rev.    Stat. 
Quebec,   art.    7323)    to    whom   article    7335 
of  the  Revised  Statutes  of  Quebec  declares 
that    the    employers    shall    be   liable    "only 
for    the    compensation    prescribed    by    this 
subsection,"   and   his   legal   right   of   action 
under   article   1056   of   the   Civil   Code   has 
not  been  taken  away.    Lamontagne  v.  Que- 
bec   R.    Light,    Heat    &    P.    Co.    (1914)    50 
Can.   S.  C.  423. 


128 


WORKMEN'S  COMPENSATION. 


question  of  law.  Section  13  provides 
that  any  reference  to  a  workman  shall, 
if  the  workman  be  dead,  include  a  refer- 
ence to  his  personal  representative  or  to 
his  dependents.  Under  these  provi- 
sions a  question  has  arisen  whether  the 
father  of  a  deceased  workman  was  en- 
titled to  have  his  action  remanded  to 
the  court  of  session  for  a  jury  trial. 
The  House  of  Lords  did  not  directly  de- 
cide the  question,68  but  the  court  of  ses- 
sion, in  a  subsequent  decision,  took  the 
position  that  the  father  did  not  have 
such  right.69 

XVII.  Termination  of  contracts  reliev- 
ing employers  from  liability;  recerti- 
fication  of  schemes  (§  15)  . 

a.  Text  of  §  15. 

Section  15  (1)  Any  contract  (other 
than  a  contract  substituting  the  provi- 
sions of  a  scheme  certified  under  the 
workmen's  compensation  act  1897  for  the 
provisions  of  that  act)  existing  at  the 
commencement  of  this  act,  whereby  a 
workman  relinquishes  any  right  to  com- 
pensation from  the  employer  for  person- 
al injury  arising  out  of  and  in  the 
course  of  his  employment,  shall  not, 
for  the  purposes  of  this  act,  be  deemed 
to  continue  after  the  time  at  which  the 
workman's  contract  of  service  would  de- 
termine if  notice  of  the  determination 
thereof  were  given  at  the  commencement 
of  this  act. 

(2)  Every    scheme    under    the    work- 
men's compensation  act  1897,  in  force 
at  the  commencement  of  this  act,  shall, 
if  recertified  by  the  registrar  of  friendly 
societies,    have   effect   as   if   it   were    a 
scheme  under  this  act. 

(3)  The  registrar  shall  recertify  any 
such  scheme  if  it  is  proved  to  his  sat- 
isfaction that  the  scheme  conforms,  or 


has  been  so  modified  as  to  conform,  with 
the  provisions  of  this  act  as  to  schemes. 

(4)  If  any  such  scheme  has  not  been 
so  recertified  before  the  expiration  of 
six  months  from  the  commencement  of 
this  act,  the  certificate  thereof  shall  be 
revoked. 

[Section  15  is  an  elaboration  of  §  9  of 
the  earlier  act,  the  additions  being  suf- 
ficiently indicated  in  the  text  itself.] 

It.  Effect  of  this  section. 

A  scheme  of  compensation  under  $  3 
|  of  the  act  of  1897  does  not,  unless  re- 
certified under  §  15  of  the  act  of  1906, 
apply  to  an  accident  happening  after  the 
act  came  in  operation,  but  within  the 
six  months  mentioned  in  §  15,  subs.  4.70 

A  workman,  who  entered  on  his  em- 
ployment after  July  1st,  1907,  is  not 
barred  from  obtaining  compensation  un- 
der that  act  by  having  agreed  to  ac- 
cept the  provisions  of  the  scheme  cer- 
tified under  the  act  of  1897,  but  which 
had  not  been  recertified  under  the  act 
of  1906  before  the  employment  was  en- 
tered into.  71 

The  six  months  allowed  for  recertify- 
ing schemes  under  the  act  of  1906  "from 
the  commencement  of  this  act"  run  from 
July  1,  1907,  the  date  when  the  act  took 
effect.72 

It  is  not  necessary  that  a  ballot  of  the 
workmen  shall  be  taken  before  the  reg- 
istrar can  recertify  his  scheme  under 
$  15.73 

XVIII.  Repealing  clause   (§  16). 
a.  Text  of  §  16. 

Section  16  (1)  This  act  shall  come 
into  operation  on  the  1st  day  of  July, 
1907,  but,  except  so  far  as  it  relates  to 
references  to  medical  referees,  and  pro- 
ceedings consequential  thereon,  shall  not 


68  Where    a    father    whose    son    had    met 
his  death  by  accident  sought  damages  either 
at  common  law  or  alternatively  under  the 
employers'  liability  act  of  1880,  from   the 
employers  of  the  son,  the  father  is  entitled  , 
to    have    the    cause    remitted    for    trial    by  j 
jury   to   the  court   of   session;    for   if   such 
right   was   taken   away  by   §   13   and   §   14 
of  the  workmen's  compensation  act,  it  was 
restored  by  the   sheriff   court   act   of   1907, 
§  30.     Banknock  Coal  Co.  v.  Lawrie  [1912] 
A.  C.   (Eng.)    105,  81  L.  J.  P.  C.  N.  S.  89, 
106  L.  T.  N.  S.  283,   [1912]   W.  C.  Rep.  1, 
5   B.   W.   C.   C.   209,   28   Times   L.   R.   136, 
[1912]   S.  C.  20,  49  Scot.  L.  R.  98. 

69  An    action    by    a    father    against    the 
employers  of  his  deceased  son,  at  common 
law    and   under   the   liability   act   of    1880, 
is   an   action    "by   a   workman   against   his 
employer,"  within  the  meaning  of  §  14  of 
the  act,  and  cannot  be  appealed  to  the  court 
L.R.A.1916A. 


of  sessions  otherwise  than  by  appeal  on  a 
question  of  law.  Cook  v.  Bonnybridge  Sil- 
ica &  Fireclay  Co.  (1914)  51  Scot.  L.  R. 
529,  7  B.  W.  C.  C.  907. 

70  Moss   v.   Great  Eastern  R.   Co.    [1909] 
2   K.  B.    (Eng.)    274,  78  L.  J.  K.  B.  N.   S. 
1048,  100  L.  T.  N.  S.  747,  25  Times  L.  R. 
466. 

71  Wallace    v.    Hawthorne    [1908]     S.    C. 
713,   45   Scot.   L.   R.    547. 

72Morter  v.  Great  Eastern  R.  Co.  (1908; 
C.  C.)  126  L.  T.  Jo.  (Eng.)  171,  2  B.  W. 
C.  C.  480. 

73  Godwin  v.  Lord  Comrs.  of  Admiralty 
[1913]  A.  C.  (Eng.)  638,  82  L.  J.  K.  B. 
N.  S.  1126,  109  L.  T.  N.  S.  428,  29  Times 
L.  R.  774,  [1913]  W.  N.  267,  6  B.  W. 
C.  C.  788,  affirming  Court  of  Appeal  [1912] 
2  K.  B.  26,  81  L.  J.  K.  B.  N.  S.  532,  106 
L.  T.  N.  S.  136,  28  Times  L.  R.  229,  [1912] 
W.  C.  Rep.  49,  5  B.  W.  C.  C.  229. 


COMPENSATION  RECOVERABLE. 


129 


apply  in  any  case  where  the  accident 
happened  before  the  commencement  of 
this  act. 

(2)  The  workmen's  compensation  acts 
1897  and  1900  are  hereby  repealed,  but 
shall  continue  to  apply  to  cases  where 
the  accident  happened  before  the  com- 
mencement of  this  act,  except  to  the 
extent  to  which  this  act  applies  to  those 
cases. 

b.  Effect  of  this  section. 

An  appeal  to  the  House  of  Lords 
from  a  decision  of  the  court  of  ses- 
sion reversing  a  decision  of  an  arbiter 
based  on  the  report  of  a  medical  referee 
will  not  lie  under  sched.  II.,  f  17  (b), 
of  the  act  of  1906,  in  a  proceeding  under 
the  act  of  1897  in  regard  to  an  accident 
which  occurred  before  the  commence- 
ment of  the  act  of  1906,  notwithstanding 
the  exception  in  §  16,  subs.  1,  of  the  lat- 
ter act,  as  to  "references  to  medical  ref- 
erees and  proceedings  consequential 
thereon."  74 

XIX.  Citing   clause    (§    17). 
a.  Text  of  §  17. 

Section  17.  This  act  may  be  cited  as 
the  workmen's  compensation  act  1906. 

XX.  Compensation  recoverable 
(sched.  I)  . 

a.  Text  of  schedule  I. 

First  Schedule.  Scale  and  Conditions 
of  Compensation. 

(1)  The  amount  of  compensation  un- 
der this  act  shall  be:  (a)  where  death 
results  from  the  injury — 

(i.)  if  the  workman  leaves  any  de- 
pendents wholly  dependent  upon  his 
earnings,  a  sum  equal  to  his  earnings 
in  the  employment  of  the  same  employer 
during  the  three  years  next  preced- 
ing the  injury,  or  the  sum  of  £150, 
whichever  of  those  sums  is  the  larger, 
but  not  exceeding  in  any  case  £300, 
provided  that  the  amount  of  any  weekly 
payments  made  under  this  act,  and  any 
lump  sum  paid  in  redemption  thereof, 
shall  be  deducted  from  such  sum;  and 
if  the  period  of  the  workman's  employ- 
ment by  the  said  employer  has  been  less 
than  the  said  three  years,  then  the 
amount  of  his  earnings  during  the  said 
three  years  shall  be  deemed  to  be  156 
times  his  average  weekly  earnings  dur- 
ing the  period  of  his  actual  employment 
under  the  said  employer ; 

(ii.)  if  the  workman   does  not  leave 

7«Mackay  v.  Rosie  [1912]   S.  C.   (H.  L.) 
7,  49   Scot.   L.   R.   48,   56   Sol.   Jo.   48,   105 
L.  T.  N.  a  682,  5  B.  W.  C.  C.  181. 
L.R.A.1916A.  9 


any  such  dependents,  but  leaves  any  de- 
pendents in  part  dependent  upon  his 
earnings,  such  sum,  not  exceeding  in  any 
case  the  amount  payable  under  the  fore- 
going provisions,  as  may  be  agreed  upon, 
or,  in  default  of  agreement,  may  be  de- 
termined, on  arbitration  under  this  act, 
to  be  reasonable  and  proportionate  to 
the  injury  to  the  said  dependents;  and 

(iii.)  if  he  leaves  no  dependents,  the 
reasonable  expenses  of  his  medical  at- 
tendance and  burial,  not  exceeding  £10; 

(b)  Where  total  or  partial  incapacity 
for  work  results  from  injury,  a  week- 
ly payment  during  the  incapacity  not  ex- 
ceeding 50  per  cent  of  his  average  week- 
ly earnings  during  the  previous  twelve 
months,  if  he  has  been  so  long  employed, 
but  if  not,  then  for  any  less  period 
during  which  he  has  been  in  the  employ- 
ment of  the  same  employer  such  week- 
ly payment  not  to  exceed  £1:  Provid- 
ed that  (a)  if  the  incapacity  lasts  less 
than  two  weeks  no  compensation  shall  be 
payable  in  respect  of  the  first  week; 
and  (b)  as  respects  the  weekly  pay- 
ments during  total  incapacity  of  a 
workman  who  is  under  twenty-one  years 
of  age  at  the  date  of  the  injury,  and 
whose  average  weekly  earnings  are  less 
than  20s.,  100  per  cent  shall  be  sub- 
stituted for  50  per  cent  of  his  average 
weekly  earnings,  but  the  weekly  pay- 
ment shall  in  no  case  exceed  10s. 

[The  proviso  under  f  1  (b)  is  new; 
otherwise  the  paragraph  is  practically 
the  same  as  in  the  original  act.] 

(2)  For  the  purpose  of  the  provisions 
of  this  schedule  relating  to  "earnings" 
and  "average  weekly  earnings"  of  a 
workman,  the  following  rules  shall  be 
observed : 

(a)  Average  weekly  earnings  shall  be 
computed  in  such  manner  as  is  best  cal- 
culated  to   give   the   rate   per   week   at 
which   the  workman   was  being  remun- 
erated.   Provided,  that  where,  by  reason 
of  the  shortness  of  the  time  during  which 
the  workman  has  been  in  the  employment 
of  his   employer,  or  the  casual   nature 
of  the  employment,  or  the  terms  of  the 
employment,  it  is  impracticable  at  the 
date  of  the  accident  to  compute  the  rate 
of   remuneration,    regard    may    be    had 
to   the   average   weekly   amount   which, 
during  the   twelve   months  previous  to 
the  accident,  was  being  earned  by  a  per- 
son in  the  same  grade  employed  at  the 
same  work  by  the  same  employer,  or,  if 
there  is  no  person  so  employed,   by  a 
person  in  the  same  grade  employed  in  the 
same  class  of  employment  and  in   the 
same  district. 

(b)  Where  the  workman  had  entered 


130 


WORKMEN'S  COMPENSATION. 


into  concurrent  contracts  of  service 
with  two  or  more  employers  under  which 
he  worked  at  one  time  for  one  such 
employer  and  at  another  time  for  anoth- 
er such  employer,  his  average  weekly 
earnings  shall  be  computed  as  if  his 
earnings  under  all  such  contracts  were 
earnings  in  the  employment  of  the  em- 
ployer for  whom  he  was  working  at  the 
time  of  the  accident; 

(c)  Employment  by  the  same  employer 
shall  be  taken  to  mean  employment  by 
the  same  employer  in  the  grade  in  which 
the  workman  was  employed  at  the  time 
of    the    accident,   uninterrupted   by    ab- 
sence from  v/ork  due  to  illness  or  any 
other  unavoidable  cause; 

(d)  Where  the  employer  has  been  ac- 
customed to  pay  to  the  workman  a  sum 
to  cover  any  special  expenses  entailed 
on  him  by  the  nature  of  his  employment, 
the  sum  so  paid  shall  not  be  reckoned  as 
part  of  the  earnings. 

[Paragraph  2  is  new.] 

(3)  In  fixing  the  amount  of  the  week- 
ly payment,  regard  shall  be  had  to  any 
payment,  allowance,  or  benefit  which  the 
workman  may  receive  from  the  employer 
during    the    period    of    his    incapacity, 
and   in   the   case   of   partial   incapacity 
the  weekly  payment  shall  in  no  case  ex- 
ceed the  difference  between  the  amount 
of  the  average  weekly  earnings  of  the 
workman    before    the    accident    and    the 
average  weekly  amount  which  he  is  earn- 
ing or  is  able  to  earn  in  some  suitable 
employment    or   business   after    the    ac- 
cident, but  shall  bear  such  relation  to 
the  amount  of  that  difference  as  under 
the  circumstances  of  the  case  may  ap- 
pear proper. 

[Paragraph  2  of  the  original  schedule 
reads  as  follows: 

In  fixing  the  amount  of  the  weekly 
payment,  regard  shall  be  had  to  the  dif- 
ference between  the  amount  of  the  aver- 
age weekly  earnings  of  the  workman 
before  the  accident,  and  the  average 
amount  which  he  is  able  to  earn  after 
the  accident,  and  to  any  payment,  not 
being  wages,  which  he  may  receive  from 
the  employer  in  respect  of  his  injury 
during  the  period  of  his  incapacity.] 

(4)  Where  a  workman  has  given  notice 
of  an  accident,  he  shall,  if  so  required 
by    the    employer,    submit    himself    for 
examination  by  a  duly  qualified  medical 
practitioner  provided   and   paid   by   the 
employer,   and   if  he  refuses   to   submit 
himself  to  such  examination,  or  in  any 
way  obstructs  the  same,  his  right  to  com- 
pensation, and  to  take  or  prosecute  any 
proceeding  under  this  act  in  relation  to 
compensation,   shall   be   suspended  until 
L.R.A.1916A. 


such  examination  has  taken  place   [If  3- 
of  the  original  act]. 

(5)  The  payment  in  the  case  of  death 
shall,  unless  otherwise  ordered  as  here- 
inafter  provided,   be   paid   into   county 
court,  and  any  sum  so  paid  into  court 
shall,  subject  to  rules  of  court  and  the 
provisions  of  this  schedule,  be  invested,, 
applied,  or  otherwise  dealt  with  by  the 
court  in  such  manner  as  the  court  in  its 
discretion  thinks  fit   for  the   benefit  of 
the  persons  entitled  thereto  under  this 
act;  and  the  receipt  of  the  registrar  of 
the  court  shall  be  a  sufficient  discharge 
in  respect  of  the  amount  paid  in : 

Provided  that,  if  so  agreed,  the  pay- 
ment in  case  of  death  shall,  if  the  work- 
man leaves  no  dependents,  be  made  to 
his  legal  personal  representative,  or,  if 
he  has  no  such  representative,  to  the 
person  to  whom  the  expenses  of  medical 
attendance  and  burial  are  due  [similar 
to  Tf  4  of  the  original  act]. 

(6)  Rules  of  court  may  provide  for 
the  transfer  of  money  paid  into  court 

I  under  this  act  from  one  court  to  another,. 

'  whether  or  not  the  court  from  which 
it  is  to  be  transferred  is  in  the  same  part 
of  the  United  Kingdom  as  the  court  to- 
which  it  is  to  be  transferred  [new]. 

(7)  Where  a  weekly  payment  is  pay- 
able under  this  act   to   a  person  under 
any  legal  disability,  a  county  court  may, 
on  application  being  made  in  accordance 
with  rules  of  court,  order  that  the  week- 
ly payment  be  paid  during  the  disabil- 
ity into  court,  and  the  provisions  of  this, 
schedule  with  respect  to  sums  required 
by  this  schedule  to  be  paid  into  court 
shall  apply  to  sums  paid  into  court  in 
pursuance  of  any  such  order  [new]. 

(8)  Any  question  as  to  who  is  a  de- 
pendent shall,  in  default  of  agreement, 
be  settled  by  arbitration  under  this  act,, 
or,  if  not  so  settled  before  payment  into 
court  under  this  schedule,  shall  be  set- 
tled by  the  county  court,  and  the  amount 
payable  to  each  dependent  shall  be  set- 
tled  by   arbitration   under  this   act,   or, 
if  not   so   settled  before   payment   into- 
court  under  this  schedule,  by  the  county 
court.     Where  there  are  both  total  and 
partial  dependents,  nothing  in  this  sched- 
ule shall  be  construed  as  preventing  the 
compensation    being    allotted    partly    to 
the  total  and  partly  to  the  partial  de- 
pendents   [similar  to  5th  paragraph  of 
the  act  of  1897;  last  sentence  is  new]. 

(9)  Where,  on  application  being  made 
in  accordance  with  rules  of  court,  it  ap- 
pears to  a  county  court  that,  on  accountN 
of  neglect  of  children  on  the  part  of  a 
widow,  or  on  account  of  the  variation  of 
the    circumstances    of    the    various    de- 


COMPENSATION  RECOVERABLE. 


131 


pendents,  or  for  any  other  sufficient 
cause,  an  order  of  the  court,  or  an  award 
as  to  the  apportionment  amongst  the 
several  dependents  of  any  sum  paid  as 
compensation,  or  as  to  the  manner  in 
which  any  sum  payable  to  any  such  de- 
pendents is  to  be  invested,  applied,  or 
otherwise  dealt  with,  ought  to  be  varied, 
the  court  may  make  such  order  for 
the  variation  of  the  former  order  or  the 
award  as  in  the  circumstances  of  the 
case  the  court  may  think  just  [new]. 

(10)  Any  sum  which  under  this  sched- 
ule is  ordered  to  be  invested  may  be  in- 
vested in  whole  or  in  part  in  the  Post- 
office  Savings  Bank  by  the  registrar  of 
the  county  court  in  his  name  as  registrar 
[If  7  of  the  original  act]. 

(11)  Any  sum  to  be  so  invested  may 
be  invested  in  the  purchase  of  an  an- 
nuity from  the  National  Debt  Commis- 
sioners   through    the   Postoffice    Savings 
Bank,  or  be  accepted  by  the  Postmaster 
General  as  a  deposit  in  the  name  of  the 
registrar  as  such,  and  the  provisions  of 
any  statute  or  regulations  respecting  the 
limits  of  deposits  in  savings  banks,  and 
the   declaration   to   be   made   by   a   de- 
positor, shall  not  apply  to  such  sums  [f  8 
of  the  original  act]. 

(12)  No  part  of  any  money  invested 
in  the  name  of  the  registrar  of  any  coun- 
ty court  in  the  Postoffice  Savings  Bank 
under  this  act  shall  be  paid  out,  except 
upon   authority   addressed   to   the   Post- 
master General  by  the  Treasury  or,  sub- 
ject to  regulations  of  the  Treasury  by 
the   judge   or   registrar   of   the    county 
court  [<I  9  of  the  original  act]. 

(13)  Any  person  deriving  any  benefit 
from   any   moneys   invested   in    a   post- 
office  savings  bank  under  the  provisions 
of   this   act   may   nevertheless  open   an 
account  in  a  postoffice  savings  bank  or  in 
any  other  savings  bank  in  his  own  name 
without  being  liable  to  any  penalties  im- 
posed by  any  statute  or  regulations  In 
respect  of  the  opening  of  accounts  in  two 
savings   banks,   or  of   two   accounts   in 
the  same  savings  bank  [f  10  of  the  origi- 
nal act]. 

(14)  Any  workman  receiving  weekly 
payments  under  this  act  shall,  if  so  re- 
quired by  the  employer,  from  time  to 
time  submit  himself  for  examination  by 
a  duly  qualified  medical  practitioner  pro- 
vided   and   paid   by   the   employer.      If 
the    workman    refuses    to    submit    him- 
self to  such  examination,  or  in  any  way 
obstructs   the   same,   his   right   to   such 
weekly    payments    shall    be    suspended 
until  such  examination  has  taken  place. 

[The  following  clause,  forming  part  of 
the  first  sentence  in  |  11  of  the  earlier 
L.R.A.1916A. 


schedule,  was  omitted  from  ^f  14  of  the 
later  act : 

But  if  the  workman  objects  to  an  ex- 
amination by  that  medical  practitioner, 
or  is  dissatisfied  by  the  certificate  of 
such  practitioner  upon  his  condition, 
when  communicated  to  him,  he  may  sub- 
mit himself  for  examination  to  one  of  the 
medical  practitioners  appointed  for  the 
purposes  of  this  act,  as  mentioned  in 
tne  second  schedule  to  this  act,  and  the 
certificate  of  that  medical  practitioner 
as  to  the  condition  of  the  workman  at  the 
time  of  the  examination  shall  be  given 
to  the  employer  and  workman,  and  shall 
be  conclusive  evidence  of  that  con- 
dition]. 

(15)  A  workman  shall  not  be  required 
to  submit  himself  for  examination  by  a 
meaical  practitioner  under  paragraph 
(4)  or  paragraph  (14)  of  this  schedule, 
otherwise  than  in  accordance  with  reg- 
ulations made  by  the  Secretary  of  State, 
or  at  more  frequent  intervals  than  may 
oe  prescribed  by  those  regulations. 

Where  a  workman  has  so  submitted 
himself  for  examination  by  a  medical 
practitioner,  or  has  been  examined  by 
a,  medical  practitioner  selected  by  him- 
self, and  the  employer  or  the  workman, 
as  the  'case  may  be,  has  within  six  days 
after  such  examination  furnished  the 
otner  with  a  copy  of  the  report  of  that 
practitioner  as  to  the  workman's  con- 
dition, then,  in  the  event  of  no  agree- 
ment being  come  to  between  the  employer 
and  the  workman  as  to  the  workman's 
condition  or  fitness  for  employment,  the 
registrar  of  a  county  court,  on  applica- 
tion being  made  to  the  court  by  both 
parties,  may,  on  payment  by  the  ap- 
plicants of  such  fee,  not  exceeding  £1, 
as  may  be  prescribed,  refer  the  matter 
to  a  medical  referee. 

The  medical  referee  to  whom  the  mat- 
ter is  so  referred  shall,  in  accordance 
with  regulations  made  by  the  Secretary 
of  State,  give  a  certificate  as  to  the  con- 
dition of  the  workman  and  his  fitness, 
for  employment,  specifying,  where  nec- 
essary, the  kind  of  employment  for  which 
he  is  fit,  and  that  certificate  shall  be- 
conclusive  evidence  as  to  the  matters  so- 
certified. 

Where  no  agreement  can  be  come  to- 
between  the  employer  and  the  workman 
as  to  whether  or  to  what  extent  the  in- 
capacity of  the  workman  is  due  to  the 
accident,  the  provisions  of  this  para- 
graph shall,  subject  to  any  regulations 
made  by  the  Secretary  of  State,  apply 
as  if  the  question  were  a  question  as  to 
the  condition  of  the  workman. 

If  a  workman,  on  being  required  so  to. 


132 


WORKMEN'S  COMPENSATION. 


do,  refuses  to  submit  himself  for  ex- 
amination, by  a  medical  referee  to  whom 
the  matter  has  been  so  referred  as 
aforesaid,  or  in  any  way  obstructs  the 
same,  his  right  to  compensation  and  to 
take  or  prosecute  any  proceeding  under 
this  act  in  relation  to  compensation,  or, 
in  the  case  of  a  workman  in  receipt  of 
a  weekly  payment,  his  right  to  that  week- 
ly payment,  shall  be  suspended  until 
such  examination  has  taken  place. 

Rules  of  court  may  be  made  for  pre- 
scribing the  manner  in  which  documents 
are  to  be  furnished  or  served  and  ap- 
plications made  under  this  paragraph, 
and  the  forms  to  be  used  for  those  pur- 
poses, and,  subject  to  the  consent  of  the 
Treasury,  as  to  the  fee  to  be  paid  under 
this  paragraph  [new], 

(16)  Any  weekly  payment  may  be  re- 
viewed at  the  request  either  of  the  em- 
ployer or  of  the  workman,  and  on  such 
review  may  be  ended,  diminished,  or  in- 
creased, subject  to  the  maximum  above 
provided;   and  the   amount  of  payment 
shall,  in  default  of  agreement,  be  set- 
tled by  arbitration  under  this  act;    Pro- 
vided that  where  the  workman  was  at 
the  date  of  the  accident  under  twenty- 
one  years  of  age,  and  the  review  takes 
place  more  than  twelve  months  after  the 
accident,  the  amount  of  the  weekly  pay- 
ment may  be  increased  to  any  amount 
not  exceeding  50  per  cent  of  the  weekly 
sum  which  the  workman  would  probably 
have  been  earning  at  the  date  of  the  re- 
view if  he  had  remained  uninjured,  but 
not  in  any  case  exceeding  £1  [same  as 
f  12,  except  that  the  proviso  is  new]. 

(17)  Where  any  weekly  payment  has 
been    continued    for    not    less    than    six 
months,   the   liability  therefor  may,   on 
application  by  or  on  behalf  of  the  em- 
ployer, be  redeemed  by  the  payment  of 
a  lump  sum  of  such  an  amount  as,  where 
the  incapacity  is  permanent,  would,  if  in- 
vested in  the  purchase  of  an  immediate 
life    annuity    from    the    National    Debt 
Commissioners     through    the    Postoffice 
Savings  Bank,  purchase  an  annuity  for 
the  workman  equal  to  75  per  cent  of  the 
annual  value  of  the  weekly  payment,  and, 
as   in   any   other  case,   may   be   settled 
by  arbitration  under  this  act;  and  such 
lump  sum  may  be  ordered  by  the  com- 
mittee or  arbitrator  or  judge  of  the  coun- 
ty   court    to    be    invested    or   otherwise 
applied  for  the  benefit  of  the  person  en- 
titled  thereto :     Provided   that   nothing 
in  this  paragraph  shall  be  construed  as 
preventing   agreements   being   made   for 
the  redemption  of  a  weekly  payment  by 
a  lump  sum  [elaboration  of  1  13  of  the 
original  act]. 

L.E.A.1916A. 


(18)  If  a  workman  receiving  a  week- 
ly payment  ceases  to  reside  in  the  Unit- 
ed  Kingdom,   he   shall   thereupon   cease 
to    be    entitled    to    receive    any    weekly 
payment,  unless  the  medical  referee  cer- 
tifies that  the  incapacity  resulting  from 
the  injury  is  likely  to  be  of  a  permanent 
nature.     If  the  medical  referee  so  cer- 
tifies, the  workman  shall  be  entitled  to 
receive  quarterly  the  amount  of  the  week- 
ly payments  accruing  due  during  the  pre- 
ceding quarter  so  long  as  he  proves,  in 
such   manner  and   at   such   intervals   as 
may   prescribed   by   rules  of   court,   his 
identity  and  the  continuance  of  the  in- 
capacity in  respect  of  which  the  week- 
ly payment  is  payable  [new]. 

(19)  A  weekly  payment,  or  a  sum  paid 
by  way  of  redemption  thereof,  shall  not 
be  capable  of  being  assigned,  charged,  or 
attached,  and  shall  not  pass  to  any  other 
person  by  operation  of  law,  nor  shall  any 
claim  be  set  off  against  the  same  [same 
as  ^f  14  of  the  original  act]. 

(20)  Where    under    this    schedule    a 
right  to  compensation  is  suspended,  no 
compensation  shall  be  payable  in  respect 
of  the  period  of  suspension   [new]. 

(21)  Where  a  scheme  certified  under 
this  act  provides  for  payment  of  com- 
pensation by  a  friendly  society,  the  pro- 
visions of  the  proviso  to  the  first  subs, 
of  §  8,  §  16,  and  §  41  of  the  friendly 
societies   act   1896,   shall   not   apply   to 
such  society  in  respect  of  such  scheme 
[Tf  15  of  the  original  act]. 

(22)  In  application  of  this  act  to  Ire- 
land the  provisions  of  the  county  officers 
and  courts   (Ireland)   act  1877,  with  re- 
spect  to   money  deposited  in   the  Post- 
office  Savings  Bank  under  that  act  shall 
apply   to   money   invested   in   the   Post- 
office  Savings  Bank  under  this  act  [f  17 
of  the  original  act]. 

b.  Meaning  of  pJirase  "where  death  re- 
sults from  the  injury"  (f  la)  . 

Death  may  be  the  result  of  the  injury 
within  the  meaning  of  this  paragraph  of 
the  act,  even  though,  in  fact,  it  may  not 
be  the  natural  or  probable  consequence 
thereof ; 75  as  where  the  death  resulted 

75  Dunham  v.  Clare  [1902]  2  K.  B.  (Eng.) 
292,  71  L.  J.  K.  B.  N.  S.  683,  66  J.  P.  612,  50 
Week.  Rep.  596,  86  L.  T.  N.  S.  751,  18 
Times  L.  R.  645,  4  W.  C.  C.  102.  In  this 
case  a  workman  injured  his  foot  and  ery- 
sipelas supervened.  Collins,  M.  R.,  said: 
"It  is  incumbent  upon  the  applicant  for 
compensation  to  show  that  there  was  an 
accident  which  caused  injury,  and  that  death 
resulted  from  that  injury.  When  the  ap- 
plicant has  shown  that,  he  has  done  all 
that  is  necessary  to  establish  the  claim 


WHERE  DEATH  RESULTS  FROM  THE  INJURY. 


133 


from  a  disease  caused  by  the  accident ; 76 
and  where  it  is  caused  by  the  second  ad- 
ministration of  an  anaesthetic  for  the 
performance  of  a  second  operation,  nec- 
essary to  secure  the  full  results  antici- 
pated by  the  first  operation.77  So,  death 
may  be  found  to  be  the  result  of  an 
injury  where  such  injury  left  the  work- 
man in  a  debilitated  condition,  and  un- 
able to  resist  a  disease  subsequently  in- 
tervening.78 

Tor  decisions  holding  that  incapacity 
from  a  disease  following  an  accident  may 
be  considered  as  entitling  the  workman 
to  compensation,  although  such  disease 


was  not  the  probable  result  of  the  ac- 
cident, see  cases  cited  on  ante,  37. 

In  one  case  the  court  evidently  took 
the  view  that  death  from  suicide,  com- 
mitted while  the  workman  was  insane  as 
a  result  of  the  injury,  may  be  found  to 
be  due  to  accident.79 

But  insanity  cannot  be  inferred  mere- 
ly from  the  fact  that  a  workman  who  had 
received  an  injury  to  his  eye,  and  was 
suffering  great  pain,  committed  suicide, 
although  there  was  no  other  reason  ex- 
cept the  injury  advanced  for  the  act.80 

Employers  are  not  estopped  from 
denying  that  the  dea.th  of  a  workman 


to  compensation.  It  is  a  question  of  fact 
whether  the  death  did  result  from  the  in- 
jury caused  by  the  accident.  If  it  did,  then 
it  does  not  matter  how  improbable  or  un- 
natural it  might  have  appeared  that  death 
should  result." 

Where  a  workman  suffered  an  accident 
which  caused  a  rupture,  and  necessitated  an 
operation,  and  at  the  time  of  the  operation 
an  old  hernia  was  operated  upon,  and  the 
workman  died  eight  months  after,  having 
shown  signs  of  heart  failure  soon  after  the 
operation,  the  arbitrator  may  find  that  the 
death  resulted  from  the  accident,  where  the 
medical  evidence  indicated  that,  in  order 
properly  to  operate  for  the  second  rupture, 
the  first  one  must  also  be  operated  for. 
Mutter  v.  Thomson  [1913]  W.  C.  &  Ins. 
Rep.  241,  [1913]  S.  C.  619,  50  Scot.  L.  R.  447, 

6  B.  W.  C.  C.  424. 

The  fact  that  a  workman  who,  after  re- 
ceiving an  injury,  was  taken  to  a  hospital, 
and  thereafter  was  found  to  be  afflicted 
with  pneumonia,  subsequently  went  to  his 
home  contrary  to  the  advice  of  his  doctor, 
and  died  two  days  afterward,  does  not  nec- 
essarily preclude  a  finding  that  his  death 
"results  from  the  injury."  Dunnigan  v. 
Cavan  [1911]  S.  C.  579,  48  Scot.  L.  R.  459, 
4  B.  W.  C.  C.  386. 

It  may  be  found  that  death  resulted  from 
the  injury  where  the  workman  had  received 
a  heavy  blow  on  the  back,  and  subsequently 
died  from  a  clot  of  blood  on  the  lungs,  which 
resulted  from  an  operation  made  necessary 
by  the  diseased  condition  caused  by  the 
blow  on  the  back.  Lewis  v.  Port  of  London 
Authority  (1914)  58  Sol.  Jo.  (Eng.)  686, 

7  B.  W.  C.  C.  577. 

76  Death  from  epilepsy  caused  by  a  piece 
of  the  skull  being  detached  and  imbedded  in 
the  brain  as  the  result  of  a  blow  on  the 
head  is  due  to  an  accident,  although  the 
death  occurred  a  year  and  a  half  after  the 
blow  was  received.  Butt  v.  Gellyceridrin 
Colliery  Co.  (1909)  3  B.  W.  C.  C.  (Eng.)  44. 

Death  may  be  found  to  be  the  result  of  an 
injury  where  a  bricklayer  returned  home  at 
night  with  a  wound  on  his  thumb,  and  about 
two  weeks  afterward  an  abscess  formed  in 
the  armpit,  and  the  man  died  soon  after 
from  septic  poisoning,  and  the  doctor  who 
treated  him  believed  that  the  poison  got 
into  his  system  from  the  wound,  the  period 
L.R.A.1916A. 


of  incubation  being  such  as  would  generally 
intervene  between  an  accident  and  an  ab- 
scess of  such  character.  Fleet  v.  Johnson 
(1913)  W.  C.  &  Ins.  Rep.  (Eng.)  149,  29 
Times  L.  R.  207,  57  Sol.  Jo.  226,  6  B-  W. 
C.  C.  60. 

See  also  Dunham  v.  Clare  (Eng.)  supra. 

77  Shirt  v.   Calico  Printers'  Asso.    [1909] 
2  K.  B.    (Eng.)   51,  3  B.  R.  C.  62,  78  L.  J. 
K.   B.  N.   S.   528,   100  L.   T.  N.   S.  740,   25 
Times  L.  R.  451,  53  Sol.  Jo.  430,  2  B.  W. 
C.  C.  342. 

78  The  arbitrator  may  find  that  death  re- 
sults from  the  injury  where  the  workman 
fell   from   a   ladder   and   received   a    severe 
shaking  and  bruising  and  an  injury  to  his 
ankle,  and  he   died   about   a  month   there- 
after of  appendicitis   and  consequent  peri- 
tonitis, and  during  the  month  between  the 
injury  and  death  he  was  in  a  very  low  state 
of  health  and  suffered  severe  pain.     Euman 
v.  Dalziel   [1913]   S.  C.  246,  50  Scot.  L.  R. 
143,   (1913)   W.  C.  &  Ins.  Rep.  49,  6  B.  W. 
C.  C.  900. 

Death  may  be  found  to  result  from  the 
injury  although  the  workman  had  recovered 
from  the  direct  effects  of  it,  and  the  death 
occurred  thirteen  months  after,  if  the  work- 
man was  in  a  debilitated  condition,  and  the 
bronchitis  of  which  he  died  only  hastened 
his  death.  Thoburn  v.  Bedlington  Coal  Co. 
(1911)  5  B.  W.  C.  C.  (Eng.)  128. 

79  In  Malone  v.  Cayzer  [1908]  S.  C.  479,  45 
Scot.  L.  R.  351,  1  B.  W.  C.  C.  27,  it  was 
held  that  a  claim  by  a  widow  should  not 
be  dismissed  on  the  ground  of  the  irrele- 
vancy of  her  plea  that  an  accident  to  her 
husband's   eye   which   rendered   him   nearly 
blind,  and  which  so  worked  upon  his  nerve 
that  he  became  insane  and  eventually  com- 
mitted suicide,  was  the  cause  of  his  death. 
The   appellate   court   held  that   it   was   not 
clear  that  the  chain  of  causation  could  be 
made   out,  but  that   the   sheriff  substitute 
should  have  made  inquiry  into  the  matters 
alleged. 

80  There  can  be  no  compensation  recovered 
for  the  death  by  suicide  of  a  workman  who 
had  suffered  an  injury  to  his  eye,  and  the 
doctor  thought  that  he  might  lose  the  sight 
of  it,  where  there  was  no  evidence  of  in- 
sanity on  the  part  of  the  workman.     Grime 
v.  Fletcher   [1915]    1  K.  B.   (Eng.)   734,  31 
Times  L.  R.  158,  84  L.  J.  K.  B  K  S.  847, 


134 


WORKMEN'S  COMPENSATION. 


was  due  to  accident  merely  because  they 
had  made  an  agreement  with  the  work- 
man during  his  lifetime  to  pay  him  com- 
pensation as  long  as  his  incapacity  con- 
tinued; it  was  still  open  for  them  to 
show  that  the  death  was  due  to  some 
other  cause.81 

The  burden  of  proof  is  on  the  ap- 
plicant to  show  that  the  death  or  in- 
jury was  due  to  the  alleged  accident.82 
That  death  resulted  from  the  accident 
may  be  proved  by  legitimate  inference 
from  the  circumstances  established,  but 
there  must  be  something  more  than 
guess,  conjecture,  or  surmise.83 

The  court  of  appeal  will  not  review 
the  findings  of  fact  by  the  county  court 
judge  as  to  whether  the  death  was  or 
was  not  caused  by  the  accident.84  The 
county  court  judge  is  justified  in  re- 
lying upon  the  medical  opinion  of  the 
assessor  as  to  the  cause  of  the  death.85 

c.  Amount  recoverable  in  case  of  death 
by  persons  dependent  upon  the  work- 
man's er~.  }<ings  (J  la)  . 

The  efiVvt  of  schedule  I.  (1)  (a)  (i) 
as  a  whole,  is  that,  where  death  results 


from  the  injury,  and  the  workman  leaves 
dependents  who  were  wholly  dependent 
on  his  earnings,  the  amount  of  compen- 
sation is  to  be  a  sum  equal  to  his  earn- 
ings in  the  employment  of  the  same 
employer  during  the  three  years  next 
preceding  the  injury,  or,  where  the  em- 
ployment has  been  less  than  the  three 
years,  a  sum  equal  to  156  times  his  aver- 
age weekly  earnings  during  the  period  of 
his  actual  employment.  But  in  neither 
case  is  the  cpmpensation  to  exceed  £300 
or  be  less  than  £150.  The  maximum 
and  minimum  amounts  of  compensation 
which  are  specified  apply  whether  the 
workman  has  been  working  more  than 
the  three  years  or  a  less  period.86 

In  determining  the  sum,  "reasonable 
and  proportionate  to  the  injury,"  which 
is  to  be  awarded  to  partial  dependents, 
the  funeral  expenses  of  the  workman 
may  be  taken  into  consideration.87  What 
compensation  is  "reasonable  and  propor- 
tionate to  the  injury"  to  a  dependent 
partially  dependent  upon  the  earnings 
of  a  deceased  workman  is  a  question  of 
fact  for  the  county  court  judge.88  In  a 
proper  case,  he  may  award  a  partial  de- 
pendent the  sum  of  £300  compensation, 


8  B.  W.  C.  C.  69,  [1915]  W.  N.  43,  59  Sol. 
Jo.  233. 

siCleverley  v.  Gaslight  &  C.  Co.  (1907; 
H.  L.)  24  Times  L.  R.  (Eng.)  93,  1  B.  W.  C. 
C.  82. 

82  Dean  v.  London  &  N.  W.  R.  Co.  (1910) 
3  B.  W.  C.  C.  (Eng.)  351. 

83  The  county  court  judge  cannot  find  that 
death  resulted  from  the  accident  where  it 
appeared    that    death    was    the    result    of 
peritonitis    following   a   perforation    of   the 
bowels,  which  perforation  was  shown  upon 
a  post  mortem  examination  not  to  have  been 
the  result  of  an  accident  but  of  some  un- 
known cause  or  of  appendicitis  from  which 
the  workman  was  suffering  prior  to  the  acci- 
dent.    Woods  v.  Wilson    [1913]    W.   C.   & 
Ins.  Rep.    (Eng.)   569,  29  Times  L.  R.  726, 
6  B.  W7.  C.  C.  750. 

Where  a  workman  died  four  years  after 
the  accident,  and  two  doctors  said  the 
death  was  due  to  the  accident,  and  two 
others  thought  the  death  was  not  due  to  the 
accident,  the  county  court  judge  is  justified 
in  holding  that  the  death  did  not  result 
from  the  injury.  Taylorsen  v.  Framwell- 
gate  Coal  &  Coke  Co.  [1913]  W.  C.  &  Ins. 
Rep.  (Eng.)  179,  6  B.  W.  C.  C.  56. 

In  Southall  v.  Cheshire  County  News  Co. 
(1912)  5  B.  W.  C.  C.  (Eng.)  251,  where  a 
workman,  while  suffering  from  his  injuries, 
went  out  of  his  house  early  in  the  morn- 
ing, and  his  body  was  afterwards  found  in 
a  canal  more  than  400  yards  from  the 
house,  and  there  was  no  evidence  as  to 
how  he  came  by  his  death,  Cozens-Hardy, 
M.  R.,  said:  "The  judge  seems  to  have 
thought  it  was  more  likely  that  the  man 
L.R.A.1916A. 


committed  suicide  than  anything  else.  The 
judge  is  not  entitled  to  act  upon  a  surmise 
of  that  nature.  It  is  not  at  all  a  case  in 
which  there  are  facts  from  which  an  infer- 
ence may  be  drawn." 

84  Cameron  v.  Port  of  London  Authority 
(1912)  5  B.  W.  C.  C.  (Eng.)  416. 

85  Lewis    v.    Port    of    London    Authority 
[1914]   58  Sol.  Jo.   (Eng.)   686,  7  B.  W.  C. 
C.  577. 

86  Forrester    v.    M'Callum     (1901)     3    Sc. 
Sess.  Gas.  5th  series,  650,  38   Scot.  L.   R. 
448,   8   Scot.   L.   T.   486,   reconsidering   and 
disapproving    Doyle    v.    Beattie     (1900)     2 
Sc.    Sess.    Cas.    5th    series,    1166,   37    Scot. 
L.  R.  915,  8  Scot.  L.  T.  131. 

87Bevan  v.  Crawshay  Bros.  [1902]  1  K. 
B.  (Eng.)  25,  71  L.  J.  K.  B.  N.  S.  49,  85 
L.  T.  N.  S.  496,  50  Week.  Rep.  98;  Murray 
v.  Gourlay  [1908]  S.  C.  769,  45  Scott.  L. 
R.  577;  Hughes  v.  Summerlee  &  M.  Iron  & 
Steel  Co.  (1903)  5  Sc.  Sess.  Cas.  5th  series 
(Scot.)  784. 

88  An  award  of  compensation  by  the  coun- 
ty court  judge  without  stating  how  he  ar- 
rived at  that  amount  will  not  be  disturbed 
on  appeal  where  it  appears  that  the  amount 
awarded  was  £5  less  than  the  maximum 
which  could  have  been  awarded,  and  there 
was  evidence  that  the  applicant,  the  widow 
of  the  deceased  workman,  was  earning 
something  less  than  2s.  a  week  herself, 
there  being  no  evidence  to  show  that  the 
county  court  judge  had  misdirected  him- 
self. Osmond  v.  Campbell,  [1905]  2  K.  B. 
(Eng.)  852,  75  L.  J.  K.  B.  N.  S.  1,  54  Week. 
Rep.  117,  93  L.  T.  N.  S.  724,  22  Times  L. 
R.  4. 


PERSONS  DEPENDENT  UPON  WORKMAN'S  EARNINGS. 


135 


which   is    the   maximum   that    could    be 
-awarded  for  total  dependency.89 

Where  the  county  court  judge  awards 
a  certain  sum  to  a  dependent,  he  must 
find  whether  or  not  the  dependent  was 
totally  or  partially  dependent.90  But 
the  existence  of  persons  wholly  depend- 
ent does  not  exclude  partial  dependents 
from  sharing  in  the  compensation  re- 
covered.91 

Dependents  are  entitled  to  compensa- 
tion upon  the  death  of  f'1" 
though  he  had  been  receiving  compensa- 
tion during  his  lifetime.92  They  are  not 
precluded  from  recovering  the  compensa- 
tion due  them  under  the  act,  by  any 
action  on  the  part  of  the  workman,  ex- 
cept that  the  employer  is  to  be  credited 
with  any  compensation  which  he  had 
paid  to  the  workman  himself.93  And 
their  right  to'  compensation  not  being  a 
derivative  claim,  they  are  not  estopped 
by  an  award  terminating  compensation 


to  the  workman  during  his  lifetime.94 
But  a  statutory  election  by  a  workman, 
as  between  his  employer  and  a  third  per- 
son whose  negligence  caused  the  injury, 
is  binding  not  only  upon  the  workman, 
but  also  upon  his  dependents.  See 
ante,  101. 

Upon  the  death  of  the  sole  dependent, 
his  representative  is  entitled  to  claim  all 
that  the  dependent  might  have  claimed. 
It  has  been  so  held  in  a  case  in  which 
the  claim  had  been  made  by  the  depend- 
ent during  his  lifetime,95  and  also  in  a 
case  in  which  the  dependent  had  died 
without  making  any  claim  whatsoever.96 

Where  the  mother  of  a  deceased  work- 
man received  from  him  a  regular  weekly 
allowance  and  also  received  weekly  re- 
lief from  the  guardians  of  the  poor,  the 
proper  method  of  computing  the  com- 
pensation is  to  take  the  deceased's  earn- 
ings on  the  three  year  basis  and  deduct 
from  that  the  amount  the  dependent 


89  Cheverton   v.   Oceanic   Steam   Nav.   Co. 
[1913]   W.  C.  &   Ins.  Rep.    (Eng.)    462,  29 
Times  L.  R.  658,  6  B.  W.  C.  C.  574. 

90  Cheverton   v.  Oceanic  Steam  Nav.  Co. 
(1913)  6  B.  W.  C.  C.  (Eng.)  253. 

91  Robinson  v.  Anon   (1904;   C.  C.)   39  L. 
J.  (Eng.)  164,  6  W.  C.  C.  117,  disapproving 
Fagan  v.  Murdoch    (1899)   1   Sc.  Sess.  Cas. 
5th  series,  1179,  36  Scot.  L.  R.  921,  7  Scot. 
L.  T.  113. 

92Q'Keefe  v.  Lovatt  (1901)  18  Times 
L.  R.  (Eng.)  57. 

93  The  mere  fact  that  a  workman  who 
has  been  receiving  compensation  goes  back 
to  his  work,  nothing  being  said  by  either 
the  workman  or  the  employer  as  to  the 
discontinuance  of  the  compensation,  does 
not  show  that  he  had  abandoned  his  right 
to  further  compensation;  and  even  if  he 
had,  he  cannot  deprive  his  dependents  under 
the  act,  except  that  the  employer  is  entitled 
to  credit  for  what  he  had  paid  the  work- 
man. Williams  v.  Vauxhall  Colliery  Co. 
[1907]  2  K.  B.  (Eng.)  433,  76  L.  J.  K.  B. 
N.  S.  854,  97  L.  T.  N.  S.  559,  23  Times  L. 
R.  591. 

In  Howell  v.  Bradford  (1911)  104  L.  T. 
N.  S.  (Eng.)  433,  it  was  held  that  the  act 
of  an  injured  workman  in  signing  a  receipt 
as  "being  in  full  satisfaction  and  liquida- 
tion of  all  claims  under  the  employers'  lia- 
bility act  of  1880  and  the  common  law  in 
respect  of  the  injuries,  whether  now  or  here- 
after to  become  manifest,  arising,  directly 
or  indirectly,  from  an  accident  which  oc- 
curred" to  him,  would  not  bar  his  depend- 
ents from  subsequently  claiming  compensa- 
tion under  the  act,  they  being  barred  merely 
from  recovering  under  the  act  to  the  extent 
of  the  benefits  received  by  him. 

Statements  of  the  deceased  workman 
are  not  admissible  as  against  his  depend- 
ents, since  the  applicants  have,  as  depend- 
ents, a  direct  statutory  right  against  the 
employer,  and  the  applicants  do  not  de- 
L.R.A.1916A. 


rive  their  title  to  compensation  by  deriva- 
tion from  the  workman.  Tucker  v.  Oldbury 
Urban  Dist.  Council  [1912]  2  K.  B.  (Eng.) 
317,  81  L.  J.  K.  B.  N.  S.  668,  106  L.  T.  N. 
S.  669,  [1912]  W.  C.  Rep.  238,  [1912]  W.  N. 
96,  5  B.  W.  C.  C.  296. 

94  An    award    terminating    weekly    pay- 
ments to  an  injured  workman  is  not  a  bar 
to   a   claim   for   dependents   filed   after   the 
death    of    the    workman.      Jobson    v.    Cory 
(1911)  4  B.  W.  C.  C.  (Eng.)  284. 

95  If  the  sole  dependent  dies  after  mak- 
ing a  claim,  but  before  the  award  is  made, 
the  claim   survives.     Darlington   v.  Roscoe 
[1907]   1  K.  B.   (Eng.)   219,  76  L.  J.  K.  B. 
N.  S.  371,  96  L.  T.  N.  S.  179,  23  Times  L. 
R.  167. 

96  United  Collieries  v.  Simpson  [1909]  A. 
C.  (Eng.)  383,  78  L.  J.  C.  P.  N.  S.  129,  101 
L.   T.   N.   S.   129,   25   Times   L.   R.   678,   53 
Sol.  Jo.   630,    [1909]    S.  C.    (H.   L.)    19,  46 
Scot.  L.  R.  780,  2  B.  W.  C.  C.  308,  affirming 
[1908]    S.   C.   1215,  45   Scot.   L.   R.   944,   1 
B.  W.  C.  C.  289.    In  this  case  the  dependent 
died    without    making    any    claim,    and    a 
claim  was  subsequently  filed  in  behalf  of 
her     personal     representative.       The     Lord 
Chancellor  said:     "The  act  does  not  require 
that    the    dependent    himself   should    make 
the  claim,  and  I  do  not  see  why  that  right 
to  make  the  claim  should  not  pass  to  the 
executor.     It  seems  to  me,  therefore,  that, 
as  the  person  represented  by  the  respondent 
was  the  only  dependent,  her  representative 
may  properly  claim  all  that   she  was   en- 
titled to,  the  right  being  transmissible  as 
property.     If   there    had   been    several   de- 
pendents, the   law   would   not   be  different, 
but  the  discretion  of  the  county  court  judge 
or  sheriff  in  apportioning  might  very  like- 
ly render  the  proceedings  unprofitable.     No 
doubt   this   act   was   intended   to   save   de- 
pendents from  the  loss  they  might  sustain 
by  being  deprived  of  the  support  they  pre- 
viously   had   from    the   deceased    workman, 


136 


WORKMEN'S  COMPENSATION. 


would  have  received  from  the  guardians 
during  the  three  years.97 

In  determining  the  question  of  the 
dependency  of  a  father  on  the  earnings 
of  his  son,  the  county  court  judge  is 
not  precluded  by  law  from  making  a  de- 
duction in  respect  of  the  cost  of  the 
son's  maintenance.98  But  he  is  not  pre- 
cluded from  taking  into  account  as 
against  the  cost  of  maintenance  of  the 
son,  the  pecuniary  benefit,  if  any,  of 
the  services  rendered  by  the  son  to  the 
father  in  the  conduct  of  the  latter's  busi- 
ness.99 Help  given  by  younger  members 
of  the  family  who  live  together  should 
not  be  treated  as  a  deduction  from  a 


workman's  wages,  in  the  absence  of  an 
express  contract.1 

As  to  the  manner  of  paying  the  money 
to  the  dependent,  see  post,  162.  And  as 
to  the  determination  of  the  question, 
Who  are  dependents?  see  ante,  121. 

d.  Amount  recoverable  by  workman  to- 
tally or  partially  incapacitated  (J 
Ib). 

The  expression  "incapacity  for  work" 
includes  incapacity  to  get  work  as  well 
as  incapacity  to  do  work.2  So  a  work- 
man may  be  incapacitated  within  the 
meaning  of  the  statute  although  he  is 
able  to  resume  his  work,  if  his  condition 
is  such  that  he  cannot  get  work  because 


and  if  the  dependents  themselves  die  they 
require  it  no  longer.  And  it  seems  anomal- 
ous to  enforce  payment  when  no  dependent 
is  still  living  to  require  support.  The  act, 
however,  provides  a  fixed  sum,  and  this 
must  be  taken  as  the  statutory  provision, 
whether  in  the  event  it  is  needed  or  not. 
Perhaps  if  this  result  had  been  foreseen,  it 
might  have  been  guarded  against;  but  that 
cannot  affect  the  judgment  of  a  court  of 
law." 

The  above  decision  disapproves  O'Dono- 
van  v.  Cameron  [1901]  2  I.  R.  633,  34  Ir. 
Law  Times,  169,  where  it  was  held  that 
where  the  sole  dependent  of  a  deceased 
workman  dies  after  having  served  notice 
of  the  accident,  but  before  any  claim  for 
compensation  has  been  made,  the  right  to 
recover  compensation  does  not  pass  to  the 
personal  representative  of  the  dependent. 

Harvey  v.  North  Eastern  Marine  En- 
gineering Co.  (1902;  C.  C.)  5  W.  C.  C. 
(Eng.)  30,  113  L.  T.  Jo.  499,  holding  that 
the  personal  representative  of  a  dependent 
who  died  after  filing  a  claim,  but  before 
an  award  was  made,  cannot  continue  the 
proceeding,  as  the  dependent's  right  to  com- 
pensation died  with  him,  must  be  con- 
sidered as  overruled. 

97Byles  v.  Pool  (1908;  C.  C.)  126  L.  T. 
Jo.  (Eng.)  287,  73  J.  P.  104,  53  Sol.  Jo. 
215,  2  B.  W.  C.  C.  484. 

98Tamworth  Colliery  Co.  v.  Hall  [1911] 
A.  C.  (Eng.)  665,  105  L.  T.  N.  S.  449,  55 
Sol.  Jo.  615,  4  B.  W.  C.  C.  313,  reversing 
[1911]  1  K.  B.  (Eng.)  341,  80  L.  J.  K.  B.  N. 
S.  304,  103  L.  T.  N.  S.  782,  4  B.  W.  C.  C. 
107.  Osmond  v.  Campbell  [1905]  2  K.  B. 
(Eng.)  852,  54  Week.  Rep.  117.  22  Times 
L.  R.  4,  75  L.  J.  K.  B.  N.  S.  1,  93  L.  T.  N. 
S.  724,  in  so  far  as  it  may  hold  that  upon 
the  question  of  partial  dependency  the 
county  court  judge  is  not  entitled  to  de- 
duct from  the  earnings  of  a  deceased  work- 
man the  cost  of  his  maintenance,  was  over- 
ruled. 

The  court  of  appeal  has  refused  to  inter- 
fere with  the  conclusion  of  the  county 
court  judge  where,  in  the  case  of  a  person 
partially  dependent  upon  a  deceased  work- 
man, he  estimated  the  workman's  earnings 
upon  the  whole  amount  received,  and  not 
L.R.A.1916A. 


upon  the  part  thereof  that  went  to  the 
support  of  the  dependent.  Littleford  v.  Con- 
nell  (1909)  3  B.  W.  C.  C.  (Eng.)  1.  The  de- 
cision in  Osmond  v.  Campbell  [1905]  2  K. 

B.  (Eng.)   852,  was  followed. 

See  also  O'Neill  v.  Bansha  Co-op  Agri.  & 
Dairy  Soc.  [1910]  2  I.  R.  324,  44  Ir.  Law 
Times,  52. 

99Tamworth  Colliery  Co.  v.  Hall  [19111 
A.  C.  (Eng.)  665,  105  L.  T.  N.  S.  449,  55 
Sol.  Jo.  615,  4  B.  W.  C.  C.  313. 

1  Roper  v.  Freke   (1915)   31  Times  L.  R. 
(Eng.)  507. 

2  An  accident  which  necessitates  the  re- 
moval of  the  left  eyeball  causes  an  "inca- 
pacity for  work,"  although  the  sight  of  the 
eye    had    previously    been    lost,    where    the 
workman  is  unable  to  obtain  work  as  being 
"manifestly  a  one-eyed  man."    Ball  v.  Hunt 
[1912]  A.  C.  (Eng.)  496,  81  L.  J.  K.  B.  N.  S. 
782,  106  L.  T.  N.  S.  911,  28  Times  L.  R.  428, 
56  Sol.  Jo.  550,  [1912]  W.  N/149,  [1912]  W. 

C.  Rep.  261,  5  B.  W.  C.  C.  459,  reversing 
[1911]   1  K.  B.  1048,  80  L.  J.  K.  B.  N.  S. 
655,   104  L.  T.  N.  S.   327,  27   Times  L.  R. 
323,  55  Sol.  Jo.  383,  4  B.  W.  C.  C.  225.     In 
a  dissenting  opinion  in  the  court  of  appeal, 
Fletcher  Moulton,  L.  J.,  whose  views  were 
in   effect   adopted   in   the   House   of   Lords, 
said:   "In  the  phrase  'incapacity  for  work' 
in  sched.  I.   (1)  the  word  'work'  is  used  in 
the  sense  of  doing  work  as  a  workman,  i.  e., 
for  wages  or  other  remuneration.     It  is  to 
the  capacity  for  earning  wages  as  a  work- 
man that  the  whole  scheme  of  the  act  re- 
lates.     It    is    beyond    question    that    the 
amount  of  the  compensation  depends  on  the 
change  produced  in  this,  and,  in  my  opinion, 
the  right  to  receive  compensation  depends 
on  it  also.    A  capacity  to  do  certain  physical 
acts,  but  not  to  do  them  as  a  workman  for 
wages,  is  not  in  my  opinion  a  capacity  to 
do   that   work  within   the   meaning  of   the 
act.    It  follows,  therefore,  that  as  a  general 
principle   a   workman   has   brought   himself 
within  the  act  when  he  shows  that  by  rea- 
son  of   an   accident   arising   out  of   and   in 
the  course  of  his  employment  he  has  sus- 
tained an  injury  which  lessens  his  earning 
capacity,   and   this,  whether  or  not   it  has 
diminished  his  physical  capacity  for  doing 
his  work." 


WORKMAN  TOTALLY  OR  PARTIALLY  INCAPACITATED. 


137 


he  is  liable  to  break  down  at  any  time.8 
And  incapacity  may  "result  from  the 
injury"  although  it  is  not  the  probable 
result  thereof.* 

A  workman  who  has  shown  that  he 
was  injured  by  accident  arising  out  of 
and  in  the  course  of  his  employment  is 
not  disentitled  to  be  paid  compensation 
by  reason  of  the  supervention  of  some 
cause  not  due  to  the  accident,  which 
equally  results  in  incapacity  for  work; 
as  where  heart  disease  has  supervened,5 
or  where  the  workman,  while  receiving 
compensation,  was  convicted  of  a  crime 
and  sentenced  to  a  term  of  imprison- 
ment.6 An  earlier  decision  by  a  county 
court  judge  was  to  the  contrary.7 

Incapacity  may  be  found  to  exist  as 
the  result  of  an  injury  although  the 
workman  was  partially  incapacitated  be- 
fore the  injury.8  And  the  nervous  and 
mental  as  well  as  the  physical  condition 


of  an  injured  workman  must  be  taken 
into  consideration  in  estimating  the  ex- 
tent of  his  recovery  and  consequent  earn- 
ing capacity.9  But  mere  mental  brood- 
ing over  an  accident,  causing  inability 
to  work,  is  not  an  incapacity  under  the 
act.10  Although  a  workman  was  advised 
by  his  doctor  not  to  continue  his  work 
in  a  coal  pit,  the  county  court  judge  is 
not  justified  in  awarding  him  full  com- 
pensation upon  the  ground  that  he  acted 
reasonably  in  following  his  doctor's  ad- 
vice, but  he  must  find  out  his  capacity 
for  work.11 

A  workman  who  was  twice  injured 
may  recover  compensation  for  one  of 
the  injuries  if  it  incapacitates  him,  al- 
though he  is  fully  recovered  from  the 
other.12 

The  question  as  to  what  constitutes 
incapacity  is  to  be  determined  by  the 
facts  of  each  case.13  An  unskilled  la- 


3  A  workman  injured  in  the  knee  is  en- 
titled to  full  compensation  where,  although 
he  is  able  to  resume  work,  the  knee  is  liable 
to  break  down  at  any  time,  and  for  that 
reason  he  is  unable  to  procure  work  either 
from  his  former  employer  or  elsewhere. 
Thomas  v.  Fairbairne  (1911)  4  B.  W.  C.  C. 
(Eng.)  195. 

*  In  Ystradowen  Colliery  Co.  v.  Griffiths 
[1909]  2  K.  B.  (Eng.)  533,  78  L.  J.  K.  B. 
N.  S.  1044,  100  L.  T.  N.  S.  869,  25  Times 
L.  R.  622,  2  B.  W.  C.  C.  357,  the  county  court 
judge  was  held  to  have  misdirected  himself 
in  holding  that  bronchitis  and  chronic  asth- 
ma were  not  the  natural  result  of  injury 
to  the  workman  where,  because  of  his  in- 
jury, it  took  him  two  hours  to  travel  the 
distance  of  1  mile  to  his  home,  during  which 
he  caught  cold  and  chills  which  culminated 
in  pneumonia,  and  bronchitis  and  chronic 
asthma  supervened. 

BHarwood  v.  Wyken  Colliery  Co.  [1913] 
2  K.  B.  (Eng.)  15*8,  82  L.  J.  K.  B.  N.  S. 
414,  108  L.  T.  N.  S.  283,  29  Times  L.  R. 
290,  57  Sol.  Jo.  300,  [1913]  W.  C.  &  Ins. 
Rep.  317,  [1913]  W.  N.  53,  6  B.  W.  C.  C. 
225. 

SMcNally  v.  Furness  [1913]  3  K.  B. 
(Eng.)  605,  82  L.  J.  K.  B.  N.  S.  1310,  109 
L.  T.  N.  S.  270,  29  Times  L.  R.  678,  [1913] 
W.  N.  239,  6  B.  W.  C.  C.  664. 

7  Clayton  v.  Dobbs  (1908;  C.  C.)  2  B.  W. 
C.  C.  (Eng.)  488. 

8  Where  it  is  proved  that  a  disease  would 
have  produced  total  incapacity  at  a  definite 
future  time,  but  that  the  accident  acceler- 
ated it,  so  as  to  produce  present  incapacity, 
compensation  may  be  awarded  for  the  per- 
iod of  incapacity  attributable  to  the  acci- 
dent.     Ward   v.   London    &    N.   W.    R.   Co. 
(1901;  C.  C.)  3  W.  C.  C.   (Eng.)   192. 

Although  a  workman's  eye  was  in  such 
a  condition  that  he  was  able  to  see  only 
what  came  before  the  eye,  compensation 
may  be  awarded  for  injury  which  necessi- 
L.R.A.1916A 


tated  the  removal  of  the  eye.  Martin  v. 
Barnett  (1910)  3  B.  W.  C.  C.  (Eng.)  146. 

A  miner  whose  left  eye  was  affected  by 
disease  so  as  to  be  useless  for  underground 
work  may  be  held  to  be  suffering  from  in- 
capacity resulting  from  an  accident,  where 
his  right  eye  was  injured  to  such  an  extent 
that  it  was  of  little  use  for  underground 
work,  although  the  condition  of  the  left 
eye  was  neither  caused  nor  aggravated  by 
the  accident.  Lee  v.  Baird  [1908]  S.  C. 
905,  45  Scot.  L.  R.  717. 

The  county  court  judge  is  justified  in 
finding  that  a  workman  who  had  suffered 
an  injury  to  his  eye  was  totally  incapaci- 
tated where  the  medical  referee  found  that 
the  injured  eye  had  only  about  i£0  of  the 
normal  vision,  and  the  right  eye  was  not 
very  good,  although  the  medical  referee  was 
inclined  to  believe  that  he  had  better  vision 
than  he  was  willing  to  own.  James  v.  Mor- 
dey  (1913)  109  L.  T.  N.  S.  (Eng.)  377,  6 
B.  W.  C.  C.  680. 

9  Turner  v.  Brooks   (1909)   3  B.  W.  C.  C. 
(Eng.)  22. 

10  Holt   v.   Yates    (1909)    3   B.   W.   C.   C. 
(Eng.)   75. 

11  Evans  v.  Cory  Bros.  [1912]  W.  C.  Rep. 
(Eng.)   199,  5  B.  W.  C.  C.  272. 

12  Where    a    workman    had    been    injured 
and  was  receiving  compensation,  and  after- 
wards, while  doing  light  work,  received   a 
further  injury,   it   is   error   for  the   county 
court  judge,  upon  a  recovery  from  the  sec- 
ond injury,  to  terminate  all  compensation 
without  inquiry  as  to  what  incapacity  re- 
mained from  the  first  injury.    Wilkinson  v. 
Frodingham  Iron  &  Steel  Co.   [1913]  W.  C. 
&  Ins.  Rep.  (Eng.)  335,  6  B.  W.  C.  C.  200. 

13  The  county  court  judge  is  justified  in 
finding   that   a   man   was   totally   incapaci- 
tated where  his  ankle   was   in   such   shape 
that  he  could  hardly  work  at   all  and  his 
place  of  work  was  2  miles  distant  from  his 
home,  and  the  workman  was  so  situated  as 


138 


WORKMEN'S  COMPENSATION. 


borer  will  not  be  presumed  to  be  in- 
capable of  doing  any  work  simply  be- 
cause he  cannot  do  his  old  work.14 

Inability  to  work,  due  to  anything 
other  than  the  accident,  cannot  be  made 

not  to  have  a  reasonable  chance  of  obtain- 
ing other  work  which  he  could  do,  although 
other  than  the  ankle  he  was  healthy.  Bed- 
dard  v.  Stanton  Ironworks  Co.  [1913]  W.  C. 
&  Ins.  Rep.  (Eng.)  535,  6  B.  W.  C.  C.  627. 

A  waitress  who  because  of  an  injury  to 
her  finger  was  unable  to  do  her  work  as 
efficiently  as  before  may  be  found  to  be  en- 
titled to  compensation,  although  after  re- 
ceiving compensation  for  a  time,  she  re- 
turned to  her  work  at  the  former  wages, 
where  she  voluntarily  left  the  place  upon 
complaint  by  her  employers  of  her  clumsi- 
ness due  to  the  injury.  Ward  v.  Miles 
(1911)  4  B.  W.  C.  C.  '(Eng.)  182. 

In  Doharty  v.  Boyd  [1909]  S.  C.  (Scot.) 
87,  the  arbitrator  awarded  compensation, 
finding  that  the  workman  was  permanently 
incapacitated  for  work  at  his  trade,  and 
that  there  was  no  proof  of  his  being  able  to 
work  in  his  present  condition.  In  an  appeal 
the  employer  contended  that  there  was  no 
finding  in  fact  to  the  effect  that  the  work- 
man was  incapacitated  for  other  work  than 
stonebreaking.  But  the'  court  refused  to  set 
aside  the  award.  Lord  M'Laren  said:  "The 
statute  does  not  say,  incapacity  for  work  of 
any  description,  but  uses  language  of  a 
more  general  nature,  which  I  think  has  been 
properly  chosen,  because  otherwise  it  might 
be  open  to  an  employer  to  state  in  defense 
some  fanciful  work  which  the  injured  work- 
man might  get,  and  might  be  supposed  ca- 
pable of  performing.  What,  therefore,  the 
sheriff-substitute  had  to  consider  was 
whether  this  was  a  substantial  case  of  in- 
capacity for  work  for  a  man  in  the  grade 
of  a  stonebreaker.  He  is  satisfied  that  this 
man  is  not  fit  for  stonebreaking,  and  I  can 
quite  understand  his  taking  the  view  that, 
if  not  fit  for  that,  he  is  not  fit  for  any  other 
description  of  work." 

A  workman  is  entitled  to  an  award  of 
compensation  where  the  arbitrator  did  not 
find  that  his  partial  incapacity,  due  to  the 
accident,  had  ceased,  but  found  merely  that 
his  total  incapacity  had  ceased  and  that  he 
was  fit  for  light  work,  but  had  made  no  at- 
tempt to  obtain  it,  and  further  found  that 
he  was  still  partially  incapacitated,  and 
that  his  partial  incapacity  was  due  in  whole 
or  in  part  to  his  failure  to  return  when 
able  to  do  so.  Devlin  v.  Chapel  Coal  Co. 
(1914)  52  Scot.  L.  R.  83,  as  cited  in  Butter- 
worths'  Dig.  1914,  col.  430. 

14  On  an  application  to  review  it  is  a  mis- 
direction for  the  county  court  judge  to  re- 
fuse to  review  on  the  ground  that  the  work- 
man could  not  do  his  old  work.    Cammell  v. 
Platt  (1908)  2  B.  W.  C.  C.  (Eng.)  368. 

15  Compensation  to  a  miner  who  had  lost 
his  right  eye  by  an  accident  must  be  term- 
inated upon  his  recovery  from  the  accident 
and   regaining  ability   to   earn   full   wages, 
L.R.A.1916A. 


the  basis  of  compensation.16  Thus,  if 
the  incapacity  is  due  simply  to  idleness, 
following  the  injury,  the  workman  is  not 
entitled  to  compensation.16  Nor  is  the 
workman  entitled  to  compensation  if  he 

although  after  the  accident  an  incipient 
cataract  developed  in  the  other  eye  and  it 
was  probable  that  in  course  of  time  he 
would  lose  the  sight  of  that  eye.  Har- 
greave  v.  Haughhead  Coal  Co.  [1912]  A.  C. 
(Eng.)  319,  [1912]  S.  C.  (H.  L.)  70,  81 
L.  J.  P.  C.  N.  S.  167,  106  L.  T.  N.  S. 
468,  [1912]  W.  C.  Rep.  275,  [1912]  W.  X. 
79,  56  Sol.  Jo.  379,  49  Scot.  L.  R.  474,  5 
B.  W.  C.  C.  445. 

Where  a  broken  arm  was  so  badly  set 
that  the  workman  could  not  use  his  hand, 
and  was  incapacitated,  and  the  employers 
claimed  that  the  incapacity  was  due  either 
to  the  negligence  of  the  bonesetter  or  to 
the  unreasonable  refusal  of  the  workman  to 
have  the  arm  rebroken  and  properly  set,  it 
is  incompetent  for  the  county  court  judge 
not  to  pass  upon  the  question  of  the  bone- 
setter's  negligence  and  to  award  compensa- 
tion after  finding  that  the  workman's  re- 
fusal was  not  unreasonable.  Humber 
Towing  Co.  v.  Barclay  (1911)  5  B.  W.  C.  C. 
(Eng.)  142. 

An  application  to  review,  and  terminate 
payments  being  made  under  an  agreement 
in  respect  to  a  certain  accident,  should  be 
granted  where  it  appeared  that  the  disease 
from  which  the  applicant  had  suffered  was 
caused  by  another  accident,  and  not  the  one 
embraced  in  the  agreement.  Booth  v.  Cart- 
er [1915]  W.  C.  &  Ins.  Rep.  (Eng.)  59,  8 
B.  W.  C.  C.  106. 

18  Incapacity  due  to  idleness  following  the 
injury,  an.d  not  to  the  injury  itself,  does 
not  entitle  the  workman  to  compensation. 
David  v.  Windsor  Steam  Coal  Co.  (1911)  4 
B.  W.  C.  C.  (Eng.)  177. 

A  workman  who  would  be  fit  to  work 
but  for  the  fact  that  he  had  failed  to  take 
proper  exercise  is  entitled  to  no  more  than 
a  suspensory  award.  Upper  Forest  &  W. 
Steel  &  Tinplate  Co.  v.  Grey  (1910)  3  B. 
W.  C.  C.  (Eng.)  424. 

Compensation  will  be  terminated  and  a 
suspensory  award  refused,  where  it  appears 
that  the  workman  was  able  to  do  her  or- 
dinary work,  and  that  any  defect  in  her 
arm  would  be  remedied  by  exercise,  which 
she  had  not  attempted  to  take.  Simpson  v. 
Byrne  [1913]  W.  C.  &  Ins.  Rep.  (Eng.)  240, 
47  Ir.  Law  Times,  27,  6  B.  W.  C.  C.  455. 

But  the  county  court  judge  is  not  justi- 
fied in  holding  that  a  workman  was  unrea- 
sonable in  not  going  to  work  where  a  part 
of  his  little  finger  had  been  amputated  and 
slight  adhesions  remained,  and  the  employer 
maintained  that  by  using  the  hand  the  ad- 
hesions would  break  down,  but  the  work- 
man, three  days  before  the  application  for 
review,  had  had  a  second  operation  upon 
the  advice  of  a  doctor.  Burgess  v.  Jewell 
(1911)  4  B.  W.  C.  C.  (Eng.)  145. 


WORKMAN  TOTALLY  OR  PARTIALLY  INCAPACITATED. 


139 


is  a  malingerer,17  or  merely  feels  nervous 
about  going  back  to  his  work ; 18  as 
where  a  workman  has  lost  an  eye  and  is 
fearful  lest  he  may  lose  the  other.19  And 
the  workman  is  not  entitled  to  compen- 
sation if  he  is  prevented  from  earning 
his  old  wages  by  the  action  of  a  trade 
union,20  or  by  a  strike,21  or  where,  after 
recovering  from  an  injury  and  return- 
ing to  work,  he  loses  his  employment  be- 
cause of  his  own  misconduct.22  But  the 
county  judge  is  not  justified  in  finding 
that  a  workman  who  loses  his  employ- 
ment by  one  act  of  misconduct  is  not 
entitled  to  compensation.23 

17  The  county  court  judge  is  justified  in 
dismissing  a  workman's  application  for  an 
ir.crease  in  compensation,  where  there  was 
no  trace  of  any  physical  disability,  and  the 
evidence  of  the  employer's  doctor  was   to 
the  effect  that  the  workman  was  a  deliber- 
ate and  conscious  malingerer,  and  was  quite 
fit  to  go  back  to  his  old  work  at  the  time. 
Ogden  v.  South  Kirky,  F.  &  H.  Collieries 
[1913]  W.  C.  &  Ins.  Rep.   (Eng.)  463,  6  B. 
W.  C.  C.  573. 

18  A    workman    who    has    recovered,    but 
who  feels  nervous  about  going  back  to  work 
at  the  same  employment,  is  not  entitled  to 
compensation     above     a     nominal     award. 
Pimms  v.  Pearson   (1909;   C.  C.)    126  L.  T. 
Jo.  (Eng.)  301,  2  B.  W.  C.  C.  489. 

19  A   workman    who   has   lost   an   eye   in 
his  employment  is  not  justified  in  refusing 
to  go  back  to  the  employment  merely  be- 
cause of  the  possible  danger  of  losing  the 
other  eye.    Howards  v.  Wharton  [1913]  W. 
C.  &  Ins.  Rep.  (Eng.)  504,  6  B.  W.  C.  C.  614. 

A  workman  who  has  lost  the  sight  of  one 
eye  is  not  justified  in  refusing  work  which 
involves  no  more  risk  to  a  one-eyed  man 
than  to  a  two-eyed,  man  merely  on  the 
ground  that  he  might  lose  the  other  eye. 
Elliott  v.  Curry  (1912)  46  Ir.  Law  Times, 
72,  [1912]  W.  C.  Rep.  188,  5  B.  W.  C.  C.  584. 

20  Where  a  laborer  who  was  injured  while 
working  at  a  wire  stripping  machine  was, 
upon   his   return   to   work,   unable   to   con- 
tinue at  work  on  the  machine,  not  because 
of  his  condition,  but  because  of  the  action 
of  a  trade  union  which  compelled  the  em- 
ployer to  use  at  the  machine  only  skilled 
workmen   and   members   of   the   union,   the 
workman   is   not   entitled   to   compensation 
at  the  rate  of  wages  that  he  was  earning 
while  at  the  machine,  and  in  absence  of  any 
evidence  as  to  his  condition,  all  the  court 
of  appeals  can  do  is  to  make  the  declara- 
tion of  the  employer's  liability.     Thompson 
v.    Johnson    [1914]    3    K.    B.    (Eng.)     694, 
[1914]  W.  N.  281,  137  L.  T.  Jo.  212,  [1914] 
W.  C.  &  Ins.  Rep.  333,  7  B.  W.  C.  C.  479. 

21  A  goods  porter  in  the  service  of  a  rail- 
road  company,    who,   after   an    injury    for 
which   he   had   received   compensation,   was 
employed  as  a  mess  room   attendant,  and, 
because   of   a   strike   on   the   railway,   was 
unable  to  get  work   for  four  days,  is   not 
entitled    to    compensation,    since    his    inca- 
L.R.A.1916A. 


The  workman  must  use  all  reasonable 
means  to  recover  his  capacity  for  work, 
and  compensation  need  not  be  paid  if  he 
does  not  follow  simple  medical  direc- 
tions,2* or  if  he  refuses  to  undergo  mas- 
sage recommended  by  his  own  doctor 
and  every  other  doctor  connected  with 
the  case.25  And  he  will  be  denied  com- 
pensation where  he  unreasonably  refuses 
to  undergo  an  operation  which  is  of  a 
minor  character,  and  which  would,  in 
the  opinion  of  medical  men,  restore  hia 
earning  capacity.26  But  is  is  otherwise 

pacity  for  work  was  the  result  of  a  strike, 
and  was  not  due  to  his  injury.  Woodhouse 
v.  Midland  R.  Co.  [1914]  3  K.  B.  (Eng.) 
1034,  30  Times  L.  R.  653,  83  L.  J.  K.  B.  N. 
S.  1810,  7  B.  W.  C.  C.  690. 

22  A  workman  who  had  been  injured,  and 
had  received  full  compensation  during  the 
incapacity  caused  by  such  injury,  and  who 
had  so  far  recovered  as  to  be  able  to  earn 
as   much   or   more  than   before   the   injury, 
but  who  was  prevented  from  so  doing  be- 
cause  of  drink,   is  not   entitled  to   a  sub- 
stantial   award.      Hill    v.    Ocean    Coal    Co. 
(1909)  3  B.  W.  C.  C.  (Eng.)  29. 

23  White  v.  Harris   (1911)   4  B.  W.  C.  C. 
(Eng.)  39. 

24  An  employer  is  not  bound  to  continue 
weekly   payments   to   an   injured   workman 
when  the  continuance  of  his  incapacity  is 
due  to  his  neglect  to  comply  with  certain 
simple   medical   directions   which   had   been 
given  to  him.    Dowds  v.  Bennie  (1902)  5  Sc. 
Sess.  Cas.  5th  series,  268,  40  Scot.  L.  R.  219, 
10  Scot.  L.  T.  439. 

Where  an  injured  worker  refuses  to  fol- 
low a  reasonable  and  safe  course  of  conduct 
which  would  in  all  probability  enable  him 
to  regain  his  usual  health  and  strength,  and 
his  continued  incapacity  is  attributed  to 
such  refusal,  he  is  not  entitled  to  receive 
further  compensation  under  the  act.  Gorm- 
ley  v.  Brisbane  Tramways  Co.  (1909) 
Queensl.  St.  Rep.  329. 

25  Wright   v.   Sneyd   Collieries    (1915)    84 
L.  J.  K.  B.  N.  S.  (Eng.)   1332. 

26  A  workman  by  refusing  to  undergo  an 
operation  precludes  himself  from  any  right 
to  receive  further  compensation,  where  the 
proposed    operations    are    simple    or    minor 
operations,   not   attended   with    appreciable 
risk  or  serious  pain,  and  are  likely  to  re- 
store to  the  workman  in  large  measure,  or 
altogether,  the  use  of  his  hand  for  the  pur- 
pose of  his  former  work.    Donnelly  v.  Baird 
[1908]    S.  C.    (Scot.)    536.     Lord   McLaren 
said:     "There  is,  of  course,  no  question  of 
compelling  the  party  to  submit  to  an  oper- 
ation.   The  question  is  whether  a  party  who 
declines    to    undergo    what    would    be    de- 
scribed by  experts  as  a  reasonable  and  safe 
operation  is  to  be  considered  as  a  sufferer 
from  the  effect  of  an  injury  received  in  the 
course  of  his  employment,  or   whether  his 
suffering  and  consequent  inability  to  work 


140 


WORKMEN'S  COMPEJN  SAT1ON . 


if  the  operation  is  a  serious  one,27  or  if 
it  is  questionable  whether  it  will  benefit 
him,28  or  if  his  own  doctor  advises 


against  it.29  Ordinarily  the  question 
whether  the  refusal  to  permit  an  opera- 
tion is  unreasonable  depends  on  the  facts 


at  his  trade  ought  not  to  be  attributed  to 
his  voluntary  action  in  declining  to  avail 
himself  of  reasonable  surgical  treatment. 
.  .  .  In  view  of  the  great  diversity  of 
cases  raising  this  question,  I  can  see  no 
general  principle  except  this,  that  if  the  op- 
eration is  not  attended  with  danger  to  life 
or  health  or  extraordinary  suffering,  and 
if,  according  to  the  best  medical  or  surgical 
opinion,  the  operation  offers  a  reasonable 
prospect  of  restoration  or  relief  from  the 
incapacity  from  which  the  workman  is  suf- 
fering, then  he  must  either  submit  to  the 
operation  or  release  his  employers  from  the 
obligation  to  maintain  him.  In  other  words, 
the  statutory  obligation  of  the  employer  to 
give  maintenance  during  the  period  of  in- 
capacity resulting  from  an  accident  is  sub- 
ject to  the  implied  condition  that  the  work- 
man shall  avail  himself  of  such  reasonable 
remedial  measures  as  are  within  his  power." 

A  workman's  refusal  to  undergo  "a  simple 
operation  not  attended  with  serious  risk  or 
pain,  and  .  .  .  such  as  a  reasonable 
man  not  claiming  compensation  for  damages 
would  for  his  own  advantage  and  comfort 
elect  to  undergo,"  disentitles  him  to  a  con- 
tinuance of  substantial  compensation.  An- 
derson v.  Baird  (1903)  5  Sc.  Sess.  Cas.  5th 
series  (Scot.)  373. 

If  the  operation  is  not  serious,  involving 
no  appreciable  risk,  and  is  likely  to  remove 
his  incapacity,  he  is  not  entitled  to  compen- 
sation if 'he  refuses  to  have  it  performed. 
Warncken  v.  Moreland  [1909]  1  K.  B.  (Eng.) 
184,  [1908]  W.  N.  252,  25  Times  L.  R.  129, 
53  Sol.  Jo.  134,  78  L.  J.  K.  B.  N.  S.  332,  100 
L.  T.  N.  S.  12. 

It  is  unreasonable  for  the  workman  to 
refuse  to  undergo  a  slight  and  trivial  oper- 
ation advised  by  the  workman's  doctor  for 
his  own  good.  Paddington  v.  Stack  (1909) 
2  B.  W.  C.  C.  (Eng.)  402. 

A  workman  receiving  compensation  is  not 
entitled  to  refuse  to  undergo  an  operation 
on  the  ground  that  he  might  risk  his  capaci- 
ty to  do  other  work,  where  the  medical 
evidence  was  to  the  effect  that  the  opera- 
tion would  not  be  attended  with  much  pain 
or  risk,  and  would  in  all  probability  restore 
the  workman's  capacity  fully  for  doing 
work.  Walsh  v.  Lock  (1914)  110  L.  T.  N.  S. 
(Eng.)  452,  [1914]  W.  C.  &  Ins.  Rep.  95, 
7  B.  W.  C.  C.  117. 

The  arbitrator  may  find  that  the  incapac- 
ity of  a  workman  is  due  to  his  refusal  to 
have  an  operation  performed,  and  not  to 
the  original  accident,  where  the  refusal  was 
upon  the  advice  of  two  doctors  who,  al- 
though they  said  that  the  operation  was 
slight  and  there  would  be  no  danger  at- 
tached to  it,  nevertheless  considered  that  it 
would  not  remove  the  incapacity.  O'Neill 
v.  Brown  [1913]  S.  C.  653,  [1913]  W.  C. 
&  Ins.  Rep.  235,  50  Scot.  L.  R.  450,  6  B.  W. 
C.  C.  428.  The  court  pointed  out  that  the 
ground  upon  which  the  medical  men  were 
against  the  operation  had  nothing  to  do 
L.R.A.1916A. 


with  the  risk  or  pain  involved,  agreeing 
with  the  other  medical  men  that  the  oper- 
ation was  an  exceedingly  simple  one  with 
no  appreciable  risk  or  danger,  but  their 
view  simply  was  that  it  would  not  be  of 
any  use. 

Although  the  facts  may  substantiate  the 
respondent's  claim  that  the  incapacity  could 
be  removed  by  a  slight  operation  which  the 
applicant  refused  to  have  performed,  the 
award  of  the  arbiter  will  be  affirmed,  and 
the  respondent's  relief  lies  not  in  an  appeal 
from  the  award,  but  in  an  application  to 
have  the  award  varied.  O'Neill  v.  Ropner 
(1908),  42  Ir.  Law  Times  3,  2  B.  W.  C.  C. 
334. 

In  Gilbert  v.  Fair  weather  (1908;  C.  C.)   1 

B.  W.  C.  C.   (Eng.)   349,  the  arbiter  refused 
to  vary  the  award  or  to  terminate  the  com- 
pensation of  a  workman  because  he  refused 
to   submit   to   an   operation    which   was   of 
trivial  character  and  practically  certain  to 
prove   successful;    the   court   said   that,   as 
a  reasonable  man,  the  workman  should  sub- 
mit to  the  operation,  but  the  matter  was 
one  for  the  court  of  appeal  to  pass  upon. 

27  In  Rothwell  v.  Davies  (1903)  19  Times 
L.   R.    (Eng.)    423,   compensation   was   held 
not  to  be  barred  because  of  the  refusal  of  a 
workman  to  undergo  an  operation  which,  al- 
though  probably   successful,   would   be   at- 
tended with  a  certain  amount  of  risk. 

28  It  cannot  be  said  that  a  workman's  re- 
fusal to  undergo  the  operation  of  trephining 
was  unreasonable,  where  it  is  admitted  that 
it    would    not    have    effected    a    total    cure. 
Hawkes  v.  Coles  (1910)  3  B.  W.  C.  C.  (Eng.) 
163. 

The  refusal  to  submit  to  a  slight  opera- 
tion, although  unreasonable,  will  not  pre- 
clude an  award  of  compensation  to  the 
workman  for  the  loss  of  his  finger,  where  it 
is  not  clear  that  the  operation  would  have 
saved  it.  Marshall  v.  Orient  Steam  Nav. 
Co.  [1910]  1  K.  B.  (Eng.)  79,  79  L.  J.  K.  B. 
N.  S.  204,  [1909]  W.  N.  225,  101  L.  T.  N.  S. 
584,  26  Times  L.  R.  70,  54  Sol.  Jo.  50  3  B.  W. 

C.  C.  15. 

In  Braithwaite  v.  Cox  (1911)  5  B.  W.  C.  C. 
(Eng.)  77,  Cozens-Hardy,  M.  R.,  said  that  it 
was  not  reasonable  to  require  a  workman  to 
submit  to  an  operation  to  remove  a  dead 
eye  merely  because  there  was  danger  from 
possible  suppuration  from  it  affecting  the 
other  eye. 

29  The  refusal  of  an  injured  workman  to 
undergo  an  operation  which  his  own  medical 
adviser,   an   eminent   surgeon,   had   advised 
him  not  to  submit  to,  is  not  a  bar  to  com- 
pensation.     Sweeney    v.    Pumpherston    Oil 
Co.   (1903)   5  Sc.  Sess.  Cas.  5th  series,  972, 
40  Scot.  L.  R.  721,  11  Scot.  L.  T.  279. 

In  Tutton  v.  The  Majestic  [1909]  2  K.  B. 
(Eng.)  54,  78  L.  J.  K.  B.  N.  S.  530,  100  L. 
T.  N.  S.  644,  25  Times  L.  R.  482,  53  Sol.  Jo. 
447,  it  was  held  that  a  workman  who,  in 
good  faith  and  upon  the  advice  of  his  own 
doctor,  refuses  to  have  an  operation  per- 


WORKMAN  TOTALLY  OR  PARTIALLY  INCAPACITATED. 


141 


of  each  case.30  A  workman  cannot  be 
claimed  to  be  unreasonable  in  refusing 
to  undergo  an  operation,  where  there  is 
no  evidence  that  the  operation  could 
lessen  the  amount  of  compensation  pay- 
able by  the  employers.81 

As  to  the  effect  of  the  refusal  of  a 
workman  to  be  examined  by  a  doctor, 
see  notes  61  et  seq.  infra. 

Earning  capacity  is  a  question  of 
fact,82  and  the  finding  of  the  arbitrator 


will  not  be  reviewed  if  there  is  evidence 
to  sustain  it.88  But  if  the  finding  of 
the  county  court  judge  as  to  the  cause  of 
incapacity  is  not  in  accord  with  the  evi- 
dence, the  case  must  be  remitted.34 

No  general  rule  as  to  the  amount  of 
compensation  can  be  laid  down,  but  the 
judge  must  use  his  discretion  with  re- 
gard to  the  particular  facts  of  each 
case.35  Under  the  Saskatchewan  com- 
pensation act,  it  has  been  held  that  an 


formed,  cannot  be  said  to  be  acting  unrea- 
sonably. 

A  workman  may  be  found  not  to  have 
acted  unreasonably  in  failing  to  exercise 
his  hand  where  his  own  doctor  was  of  the 
opinion  that  the  exercise  would  not  benefit 
it.  Moss  v.  Akers  (1911)  4  B.  W.  C.  C. 
(Eng.)  294. 

30  Whether  or  not  a  workman  is  imreason- 
able  in  refusing  to  have  an  operation  per- 
formed is  a  question  of  fact,  with  which  the 
appellate  court  will  not  interfere,  where  the 
doctors  are  not  wholly  agreed  as  to  the  ad- 
visability of  the  operation.    Ruabon  Coal  Co. 
v.  Thomas  (1909)  3  B.  W.  C.  C.  (Eng.)  32. 

The  county  court  judge  is  not  justified  in 
holding  that  a  workman  was  unreasonable 
in  not  going  to  work  where  a  part  of  his 
little  finger  had  been  amputated  and  slight 
adhesions  were  made,  and  the  employer 
maintained  that  by  using  the  hand  the  ad- 
hesions would  break  down,  but  the  work- 
man, three  days  before  the  application  to 
review  was  heard,  had  undergone  a  second 
amputation  upon  the  advice  of  a  doctor. 
Burgess  v.  Jewell  (1911)  4  B.  W.  C.  C. 
(Eng.)  145. 

A  workman  cannot  be  held  to  have  un- 
reasonably refused  to  have  an  operation  per- 
formed, where  there  was  no  proof  that  the 
operation  alleged  had  been  refused,  although 
the  workman  had  refused  to  take  an  anes- 
thetic for  another  operation  and  an  anes- 
thetic was  necessary  for  the  performance  of 
the  operation  alleged.  Hays  Wharf  v. 
Brown  (1909)  3  B.  W.  C.  C.  (Eng.)  84. 

That  the  second  application  of  an  anes- 
thetic, which  proved  fatal,  would  not  have 
been  necessary  if  the  workman  had  permit- 
ted his  hand  to  be  amputated,  instead  of 
having  skin  grafted  onto  it,  which  would 
have  preserved  the  hand,  does  not  preclude 
the  widow  from  compensation,  where  the 
operations  were  performed  by  a  skilful  sur- 
geon. Shirt  v.  Calico  Printers'  Asso.  [1909] 
2  K.  B.  (Eng.)  51,  78  L.  ,T.  K.  B.  N.  S.  528, 
100  L.  T.  N.  S.  740,  25  Times  L.  R.  451,  53 
Sol.  Jo.  430,  2  B.  W.  C.  C.  342. 

Whether  or  not  a  workman  is  unreason- 
able in  refusing  to  undergo  an  operation  is 
a  question  of  fact,  and  the  findings  of  the 
arbitrator  will  not  be  disturbed  if  there  is 
any  evidence  to  support  them.  Dolan  &  Son 
v.  Ward  (1915)  8  B.  W.  C.  C.  (Eng.)  514. 

31  Molamphy  v.  Sheridan  [1914]  W.  C.  & 
Ins.  Rep.  203  47  Ir.  L.  T.  250,  7  B.  W.  C.  C. 
957 

32Arnott  v.  Fife  Coal  Co.  [1912]  S.  C. 
1262,  49  Scot.  L.  R.  902,  6  B.  W.  C.  C.  281. 

33  Warwick  S.  S.  Co.  v.  Callaghan  (1912) 
L.R.A.1916A. 


5  B.  W.  C.  C.  (Eng.)  283;  Roberts  v.  Ben- 
ham  (1910)  3  B.  W.  C.  C.  (Eng.)  430; 
Creighton  v.  Lowry  [1915]  W.  C.  &  Ins. 
Rep.  (Eng.)  69,  8  B.  W.  C.  C.  250;  Curry 
v.  Doxford  [1915]  W.  C.  &  Ins.  Rep.  (Eng.) 
81,  8  B.  W.  C.  C.  19;  Wells  v.  Cardiff  Steam 
Coal  Collieries  (1909)  3  B.  W.  C.  C.  (Eng.) 
104;  Dolan  &  Son  v.  Ward  (1915)  8  B.  W. 
C.  C.  (Eng.)  514;  Harrison  v.  Ford  (1915) 
8  B.  W.  C.  C.  (Eng.)  429;  Penman  v.  Smith's 
Dry  Docks  Co.  (1915)  8  B.  W.  C.  C.  (Eng.) 
487;  Barren  v.  Blair  &  Co.  (1915)  8  B.  W. 
C.  C.  (Eng.)  501. 

The  finding  of  the  county  court  judge  that 
the  applicant's  incapacity  was  a  result  of 
an  old  hernia  will  not  be  disturbed,  although 
there  was  some  evidence  that  the  workman 
had  strained  himself  somewhat  in  the  em- 
ployment. Legge  v.  Nixon's  Nav.  Co.  [1914] 
W.  C.  &  Ins.  Rep.  (Eng.)  7  B.  W.  C.  C.  521. 

The  finding  of  the  county  court  judge 
that  the  incapacity  of  a  workman  was  due 
to  bad  medical  treatment  at  a  hospital, 
and  not  to  the  injury,  will  be  sustained 
where  there  is  some  evidence  to  sustain  it. 
Rocca  v.  Jones  [1914]  W.  C.  &  Ins.  Rep. 
(Eng.)  34,  7  B.  W.  C.  C.  101. 

The  finding  of  the  arbitrator  that  the 
incapacity  resulting  from  an  accident  had 
ceased  will  not  be  disturbed,  although  it 
was  admitted  that  his  age  and  a  natural 
tendency  to  obesity,  greatly  accelerated  by 
the  enforced  idleness  due  to  his  injury,  had 
rendered  him  less  and  less  fit  for  labor  of 
any  kind.  Taylor  v.  Clark,  [1914]  S.  C.  (H. 
L.)"  104,  [1914]  2  Scot.  L.  T.  125,  51  Scot. 
L.  R.  740,  58  Sol.  Jo.  738,  7  B.  W.  C.  C. 
871,  [1914]  W.  N.  327,  [1914]  W.  C.  &  Ins. 
Rep.  448,  111  L.  T.  N.  S.  882,  84  L.  J.  P.  C. 
N.  S.  14,  reversing  the  court  of  sessions 
[1914]  S.  C.  432,  1  Scot.  L.  T.  336,  51  Scot. 
L.  R.  418,  7  B.  W.  C.  C.  856. 

3*  Taylor  v.  Bolckow  (1911)  5  B.  W.  C.  C. 
(Eng.)  *130. 

The  county  court  judge  is  not  justified  in 
saying  that  incapacity  continued  where  the 
undisputed  medical  evidence  was  that  the 
workman  had  entirely  recovered.  Binns  v. 
Kearley  (1913)  6  B.  W.  C.  C.  (Eng.)  608. 
In  this  case  the  applicant  contended  that 
the  county  court  judge  had  seen  the  injured 
finger  and  he  was  the  sole  judge  of  the  facts. 
Furthermore  it  appeared  that  the  applicant 
had  been  treated  in  a  hospital  two  or  three 
days  after  the  doctors  had  said  he  had  com- 
pletely recovered. 

35  Webster  v.  Sharp  [1904]  1  K.  B.  (Eng.) 
218,  73  L.  J.  K.  B.  N.  S.  141,  68  J.  P.  140, 
52  Week.  Rep.  275,  89  L.  T.  N.  S.  627,  20 
Times  L.  R.  121,  affirmed  in  [1905]  A.  C. 


142 


WORKMEN'S  COMPENSATION. 


injured  employee  is  entitled,  first,  to  his 
expenses,  medical  services,  and  hospital 
bills;  second,  for  pain  and  suffering 
caused  by  the  injury  and  diminution  of 
his  capacity  for  the  enjoyment  of  life; 
third,  for  his  inability  to  earn  an  income 
equal  to  that  which  he  has  earned  in 
the  past;  and  that  the  measure  of  dam- 
ages under  the  third  is  the  difference  be- 
tween what  he  might  have  earned  and 
was  likely  to  have  earned  if  he  had  not 
been  injured,  and  what  he  might  earn 
and  was  likely  to  earn  in  his  injured 
state.36 

The  workman  has  no  absolute  title  to 


an  award  of  50  per  cent  of  his  wages;, 
that  is  merely  the  maximum  amount 
which  can  be  awarded ; 87  nor,  on  the 
other  hand,  is  the  amount  of  compensa- 
tion in  case  of  partial  disability  limited 
to  one  half  of  the  difference  between 
what  the  workman  was  earning  before 
the  injury,  and  what  he  was  able  to  earn 
afterwards.88  The  clause  which  provides 
that,  in  fixing  the  amount  of  a  weekly 
payment,  regard  is  to  be  had  to  the  dif- 
ference between  the  average  weekly  earn- 
ings of  the  workman  before  the  accident, 
and  the  average  amount  which  he  is  able 
to  earn  after  the  accident,  does  not 


284,  74  L.  J.  K.  B.  N.  S.  776,  92  L.  T.  N.  S. 
373. 

The  court  will  not  interfere  with  the  find- 
ing of  the  arbitrator  as  to  the  quantum  of 
the  compensation.  Roberts  v.  Hall  (1912) 
106  L.  T.  N.  S.  (Eng.)  769,  5  B.  W.  C.  C. 
331 ;  Slater  v.  Blyth  Ship  Bldg.  &  Dry  Docks 
Co.  [1914]  W.  C.  &  Ins.  Rep.  (Eng.)  39,  7  B. 
W.  C.  C.  193.  In  the  latter  case  the  appli- 
cant was  for  a  time  confined  in  an  insane 
asylum  for  reasons  independent  of  the  in- 
jury, and  the  county  court  judge,  upon  find- 
ing that  when  he  went  to  the  asylum  he  was 
fit  for  light  work,  except  for  the  insanity, 
made  an  award  accordingly. 

Upon  an  application  to  reduce  the  pay- 
ment, a  county  court  judge  is  entitled  to 
find  that  a  teamster  was  earning  more  than 
10s.  a  week,  where  he  took  a  farm  of  his 
own  of  45  acres  at  a  rent  of  £95,  possessed, 
among  other  things,  eight  bullocks  and  two 
horses,  employed  his  father,  to  whom  he 
paid  13s.  a  week  and  gave  board  and  lodg- 
ing free,  and  also  employed  a  lad  to  whom 
he  paid  8s.  a  week,  and  he  himself  with  his 
wife  had  free  board  and  lodging  at  a  clergy- 
man's house.  Duberley  v.  Mace  (1913)  W. 
C.  &  Ins.  Rep.  (Eng.)  199,  6  B.  W.  C.  C.  82. 

Under  the  Saskatchewan  act,  it  is  error  to 
award  as  compensation  a  sum  larger  than 
the  earning  for  three  years  as  estimated 
from  the  evidence  offered.  Uhlenburgh  v. 
Prince  Albert  Lumber  Co.  (1913;  Sask.)  7 
B.  W.  C.  C.  1028. 

The  county  court  judge  is  not  justified  in 
finding  that  the  average  earnings  of  a  work- 
man were  45s.  a  week,  where  he  had  worked 
on  an  average  four  and  a  half  days  a  week 
and  the  pay  was  but  6s.  per  day.  James  v. 
Mordey  (1913)  109  L.  T.  N.  S.  (Eng.)  377, 
6  B.  W.  C.  C.  680. 

36  In  Kier  v.  Benell  (1914)  7  Sask.  L.  R. 
78,  the  court  said:  "The  principle  upon 
which  damages  are  to  be  estimated  in  cases 
under  this  act  are  the  same  as  in  an  or- 
dinary action  for  damages  for  personal  in- 
jury. If  the  damages  sustained  estimated 
in  accordance  with  the  above  stated  prin- 
ciple are  fixed  at  $1,800  or  any  less  amount, 
§  15  of  the  act  has  no  application.  If  the 
damages  sustained  exceed  the  amount  of 
$1,800,  it  will  then  be  necessary  to  take 
into, consideration  'estimated  earnings'  dur- 
ing the  three  years,  but  only  in  order  to 
L.R.A.1916A. 


determine  what  amount  up  to  $2,000  can  be 
allowed,  but  in  no  case  can  more  thai 
$2,000  be  awarded." 

37  Fox   v.   Battersea    (1911)    4   B.   W.   C. 
C.  (Eng.)  261;  Snell  v.  Bristol  Corp.  [1914] 
2  K.  B.    (Eng.)    291,  83  L.  J.  K.  B.  N.   S. 
353,  110  L.  T.  N.  S.  563,  [1914]  W.  N.  47, 
[1914]  W.  C.  &  Ins.  Rep.  103,  7  B.  W.  C.  C. 
236. 

But  subsec.  2  of  article  7322,  of  the  Que- 
bec act,  does  not  limit  the  rent  which  can 
be  recovered  to  the  annual  rent  procurable 
with  a  capital  sum  of  $2,000,  except  in 
those  cases  provided  for  in  article  7329, 
where,  after  the  amount  of  the  compensa- 
tion has  been  agreed  upon,  or  after  judg- 
ment ordering  it  to  be  paid,  the  employer 
is  required,  at  the  option  of  the  person  in- 
jured or  his  representative,  to  pay  the  cap- 
ital of  the  rent  to  an  insurance  company 
designated  for  that  purpose  by  order  in 
council.  Canadian  P.  R.  Co.  v.  McDonald 
(1915)  31  Times  L.  R.  (Eng.)  600.  It  was 
contended  by  the  employer  that  the  compen- 
sation to  the  workman  who  had  been  par- 
tially but  permanently  injured  should  not 
exceed  the  annual  rent  procurable  with  the 
capital  sum  of  $2,000.  But  the  court  held 
that  he  was  entitled  to  one  half  the  amount 
by  which  his  earning  capacity  had  been  re- 
duced by  the  injury. 

38  Jones  v.  London  &  N.  W.  R.  Co.  (1901) 
4  W.  C.  C.  (Eng.)  140. 

This  decision  must  be  considered  as  over- 
ruling Russell  v.  Holme  (1900;  C.  C.)  2 
W.  C.  C.  (Eng.)  153,  108  L.  T.  Jo.  373,  in 
which  the  county  court  judge  held  that  the 
intention  of  the  legislature  was  that  the 
employee  should  bear  only  half  the  loss, 
and  that  he  could  award  him  as  compensa- 
tion only  one  half  the  difference  between  the 
wages  earned  before  and  those  earned  after 
the  accident. 

In  Humphreys  v.  London  Electric  Lighting 
Co.  (1911)  4  B.  W.  C.  C.  (Eng.)  275,  an 
award  by  the  county  court  judge  of  one  half 
the  difference  between  what  the  workman 
was  earning  after  and  what  he  had  earned 
before  the  accident  was  sustained.  The 
county  court  judge  held  that  the  amount 
awarded  was  a  reasonable  amount  under  all 
the  circumstances  of  the  case.  Cozens- 
Hardy,  M.  R.,  said :  "The  judge  has  treated 
himself  as  not  bound  by  any  absolute  rule 


WORKMAN  TOTALLY  OR  PARTIALLY  INCAPACITATED. 


343 


operate  so  as  necessarily  to  cut  down 
the  maximum  rate  of  compensation  al- 
lowed by  paragraph  1  (b)  of  the  sched- 
ule ;  39  the  arbitrator  may,  if  upon  the 
evidence  he  sees  fit,  give  as  compensa- 
tion the  whole  amount  of  the  difference 
between  the  average  earnings  of  the 
workman  before  the  injury  and  the  aver- 
age amount  of  his  earnings  after  the  in- 
jury, provided  that  it  does  not  exceed 
50  per  cent  of  the  average  earnings  be- 
fore the  injury,  and  does  not  exceed  £1 
a  week.40  So  an  allowance  for  partial 
incapacity  need  not  be  less  than  the  al- 
lowance for  total  incapacity.41 

Even  if  a  workman  who  has  been  re- 
ceiving full  compensation  recovers  some- 1 
what,  and  is  able  to  earn  something,  the  j 
employer  is  not,  as  a  matter  of  course, ! 


entitled  to  have  the  compensation  re- 
duced ;  **  a  prima  facie  case  is  presented 
justifying  a  reduction  of  the  compensa- 
tion, but  it  is  open  to  the  workman  to 
prove  circumstances  which  will  warrant 
the  arbitrator  in  refusing  to  diminish 
the  compensation.43 

A  workman  does  not  bar  himself  from 
recovering  compensation  by  reason  of  the 
fact  that,  he  had  acquiesced  for  nearly 
two  years  in  suspension  of  the  payments 
by  the  employer  made  under  an  unregis- 
tered agreement.44 

It  has  been  held  that  there  is  no  justi- 
fication for  making  an  award  of  com- 
pensation where  the  workman  is  earning 
the  same  wages  after  the  injury  as  be- 
fore.45 In  this  point  of  view  it  follows 
that  "if  there  is  a  practical  admission 


of  law,  and  I  do  not  think  that  he  was 
wrong  in  exercising  his  discretion  in  the 
way  he  did." 

In  Russell  v.  Holme  (Eng.)  supra,  the 
view  was  taken  that  where  a  workman  was 
partially  incapacitated  and  capable  of  earn- 
ing but  a  portion  of  his  former  wages,  the 
loss  should  be  borne  equally  by  the  employer 
and  the  workman. 

89  Illingworth  v.  Walmsley  [1900]  2  Q.  B. 
(Eng.)  142,  82  L.  T.  N.  S.  647,  69  L.  J.  Q. 

B.  N.  S.  519,  16  Times  L.  R.  281. 

«  Parker  v.  Dixon  (1902)  4  Sc.  Sess.  Cas. 
5th  series,  1147,  39  Scot.  L.  R.  663,  10  Scot. 
L.  T.  153;  Corbet  v.  Glasgow  Iron  &  Steel 
Co.  (1903)  5  Sc.  Sess.  Cas.  5th  series,  782, 
40  Scot.  L.  R.  601,  11  Scot.  L.  T.  60;  Geary 
v.  Dickson,  4  F.  (Scot.)  1143,  as  cited  in  2 
Mews'  Dig.  Supp.  1571. 

An  arbiter  may  decline  to  diminish  a 
payment  where  the  average  weekly  wage 
was  36s.  and  8d.,  and  the  weekly  payment 
was  18s.  and  4d.,  and  the  workman  was 
earning  but  17s.  per  week  after  his  injury. 
Bryson  v.  Dunn  (1905)  8  Sc.  Sess.  Ca's. 
5th  series  (Scot.)  226. 

41  The    county    court    judge    may    award 
full    compensation    although    he    finds    the 
workman  only  partially  incapacitated.     Os- 
borne   v.   Tra'lee   &   D.   R.   Co.    [1913]    2   I. 
R.  133,  47  Ir.  Law  Times,  141,   [1913]   W.  ' 

C.  &  Ins.  Rep.  391,  6  B.  W.  C.  C.  913. 

42  Where  a  workman  was  so  injured  that 
he    received    one    half   the    amount    of    his 
average  weekly  earnings,  the  fact  that  he 
recovers  in  part,  so  as  to  be  earning  some- 
thing,  will   not   of    itself   require   that   the 
payment  of  compensation  be  reduced.     Ellis 
v.   Knott    (1900)    2   W.   C.   C.    (Eng.)    116. 

48  Moore  v.  Pryde  [1913]  W.  C.  &  Ins. 
Rep.  100,  50  Scot.  L.  R.  302,  [1913]  S.  C. 
457,  [1913]  Scot.  L.  T.  49,  6  B.  W.  C.  C. 
384. 

44Rankine  v.  Fife  Coal  Co.  (1915)  52 
Scot.  L.  R.  361,  8  B.  W.  C.  C.  401. 

45  In  Irons  v.  Davis  [1899]  2  Q.  B.  (Eng.) 
330,  68  L.  J.  Q.  B.  N.  S.  673,  80  L.  T. 
N.  S.  673,  47  Week.  Rep.  616,  a  workman 
lost  the  top  joint  of  his  left  thumb,  and 
was  consequently  incapacitated  for  work  I 
L.R.A.1916A.  • 


for  a  certain  period.  Subsequently  he  was 
taken  back  again  into  the  service  of  the 
same  master  at  the  same  rate  of  wages 
as  before  the  accident,  but  upon  a  differ- 
ent kind  of  work.  The  county  court  judge 
awarded  him  compensation  for  the  period 
during  which  he  was  incapacitated  for  work, 
and  also  half  a  crown  a  week  for  life. 
Upon  appeal  it  was  held  that  there  was 
no  evidence  justifying  the  award  of  half 
a  crown  a  week  for  life. 

In  Pomphrey  v.  Southwark  Press  [1901] 
1  K.  B.  (Eng.)  86,  83  L.  T.  N.  S.  468, 
70  L.  J.  Q.  B.  N.  S.  48,  65  J.  P.  148,  17 
Times  L.  R.  53,  an  apprentice  sustained 
an  injury  to  his  right  hand  which  pre- 
vented his  working  as  a  skilled  artisan, 
and  the  indenture  of  apprenticeship  was 
canceled.  He  obtained,  in  proceedings  un- 
der the  act,  an  award  of  a  weekly  payment 
based  on  his  wages  for  the  previous  year. 
He  afterwards  resumed  work  at  weekly 
wages  higher  than  his  wages  at  the  time 
of  the  accident,  but  less  than  those  that 
would  be  ordinarily  paid  to  a  workman 
employed  on  the  same  class  of  work,  since 
the  injury  he  had  sustained  affected  his 
ability  to  earn  full  wages.  The  county 
court  judge  dismissed  the  application  by 
the  employers  for  the  review  and  termina- 
tion of  the  weekly  payment,  on  the  ground 
that  the  workman  was  earning  less,  by 
a  sum  equal  to  the  amount  of  the  weekly 
payment  awarded,  than  if  he  had  had  the 
use  of  his  right  hand.  On  appeal  it  was 
held  that,  on  a  review  of  a  weekly  pay- 
ment made  by  award  under  the  act,  the 
test  to  be  applied  is  the  difference  between 
the  amount  of  the  average  earnings  before 
the  accident  and  the  average  amount  which 
the  workman  is  able  to  earn  after  the 
accident;  that  in  the  absence  of  evidence 
of  advantages  incidental  to  the  employ- 
ment, and  capable  of  being  appraised  at  a 
money  value,  the  earnings  before  the  acci- 
dent must  be  determined  by  the  wages 
received;  that  the  county  court  judge  was 
therefore  wrong  in  refusing  to  review  the 
weekly  payment;  but  that  the  weekly  pay- 
ment should  be  continued  at  a  nominal 


144 


WORKMEN'S  COMPENSATION. 


on  the  part  of  the  workman  that  the  in- 
capacity has  ceased,  then  he  cannot 
claim  compensation  in  respect  of  inca- 
pacity." 46  But  on  the  other  hand,  if 
an  actual  diminution  of  his  wage-earning 
capacity  is  established,  the  fact  that,  at 
the  date  of  his  claim,  he  was  earning  the 
same  wages  as  he  had  earned  before  the 
accident  does  not,  of  itself,  show  that 
he  is  not  entitled  to  compensation.  The 
arbitrator  may  consider  the  probabilities 
that,  if  the  injuries  had  not  been  sus- 
tained, the  man  might  be  making  more 
money.47  Nor  is  his  right  to  compensa- 
tion necessarily  forfeited  because  he  re- 
fused to  accept  an  offer  of  his  employer 
to  give  him  work  at  wages  equal  to  his 
former  earnings.48  Under  the  express 
provisions  of  the  act  of  1906,  schedule 
2,  1  16,  the  arbitrator,  in  the  case  of  an 
injured  minor,  is  to  take  into  considera- 
tion the  "sum  which  the  workman  would 


probably  have  been  earning"  had  he  not 
been  injured.49 

The  county  court  judge,  under  the  act 
of  1906,  in  considering  what  the  work- 
man was  earning  before  the  accident, 
and  what  he  was  able  to  earn  afterward, 
is  required  to  have  regard  to  extraneous 
circumstances,  such  as  a  universal  re- 
duction in  wages.50 

There  is  a  sharp  conflict  between  the 
English  and  Scotch  courts  as  J;o  whether 
profits  in  a  business  undertaken  by  the 
workman  after  his  injury  are  to  be  con- 
sidered in  estimating  what  he  "is  earn- 
ing or  is  able  to  earn  in  some  suitable 
employment  or  business  after  the  acci- 
dent." The  Scotch  court  of  session  has 
held  that  profits  made  in  business  under- 
taken by  the  workman  after  his  injury 
are  not  the  measure  of  the  workman's 
earning  capacity ;  51  while  the  English 
court  of  appeal  has  held  that  the  expres- 


amount,  in  order  to  preserve  the  right  of 
the  applicant  to  make  any  further  appli- 
cation that  might  become  necessary. 

In  Baird  v.  M'Whinnie  [1908]  S.  C.  440, 
45  Scot.  L.  R.  338,  1  B.  W.  C.  C.  109,  it 
was  held  that  a  charge  against  the  employ- 
ers would  be  suspended  where  the  workman, 
who  had  returned  to  work,  refused  the 
tender  by  the  employers  of  the  difference 
between  what  he  earned  after  he  returned 
and  what  he  had  earned  for  a  like  period 
before  his  injury. 

A  workman  is  not  entitled  to  payment 
for  a  time  during  which  he  was  earning 
full  wages.  Beath  v.  Ness  (1903)  6  Sc. 
Sess.  Cas.  5th  series,  168,  41  Scot.  L.  R. 
113,  11  Scot.  L.  T.  455. 

Under  the  Quebec  act  a  workman  is  not 
entitled  to  compensation  where  after  the 
accident  he  voluntarily  returned  to  the 
employer  with  the  same  salary  he  received 
before  the  accident.  Cater  v.  Grand  Trunk 
R.  Co.  (1912)  18  Rev.  de  Jur.  (Can.)  27, 
cited  in  Canadian  Dig.  1912,  col.  825. 

46Nimms  v.  Fisher  [1906-07]  S.  C.  (Scot.) 
890.  In  this  case  the  servant  had  returned 
to  work,  and  earned  at  first  wages  lower 
than  those  received  before  the  injury,  and 
afterwards  somewhat  more  than  those 
wages. 

47Freeland  v.  Macfarlane  (1900)  2  Sc. 
Sess.  Cas.  5th  series,  832,  37  Scot.  L.  R. 
599,  7  Scot.  L.  T.  456. 

In  estimating  compensation  of  a  servant 
for  the  loss  of  a  thumb,  the  circumstance 
that  his  chances  of  employment  in  compe- 
tition with  others  are  lessened  may  prop- 
erly be  taken  into  account.  Roylance  v. 
Canadian  P.  R.  Co.  (1908)  14  B.  C.  20. 

48  Fraser  v.  Great  North  of  Scotland  R. 
Co.  (1901)  3  Sc.  Sess.  Cas.  5th  series,  908, 
38  Scot.  L.  R.  653,  9  Scot.  L,  T.  96. 

In  Jackson  v.  Hunslet  Engine  Co.  (1915) 
84  L.  J.  K.  B.  N.  S.  (Eng.)  1361,  it  was  held 
that  the  county  court  judge  misdirected 
himself  where  he  considered  that  the  fact 
that  the  applicant  was  physically  able  to 
L.R.A.1916A. 


do  the  work  he  was  doing  before,  and  that 
the  employer  offered  him  such  work,  was 
conclusive  to  show  that  he  had  suffered  no 
loss  of  wage-earning  capacity. 

49  The  fact  that  a  iainor  who  has  been 
injured  returns  to  work  at  the  same  com- 
pensation does  not  per  se  entitle  the  em- 
ployer to  have  the  compensation  ended. 
Malcolm  v.  Bowhill  Coal  Co.  [1910]  S.  C. 
447,  47  Scot.  L.  R.  449,  3  B.  W.  C.  C.  562. 

SDBevan  v.  Energlyn  Colliery  Co.  [1912] 
1  K.  B.  (Eng.)  63,  [1911]  W.  N.  206,  105 
L.  T.  N.  S.  654,  28  Times  L.  R.  27,  81 
L.  J.  K.  B.  N.  S.  172,  5  B.  W.  C.  C.  169. 
In  this  case  the  eight-hour  law  had  gone 
into  effect  after  the  accident,  and  its  eifect 
was  to  reduce  the  wages  which  the  work- 
man had  been  earning  before  the  accident 
by  nearly  one  third.  The  court  pointed 
out  that  the  words  of  clause  3  of  schedule 
1,  "such  relation  to  the  amount  of  that 
difference  as  under  the  circumstances  of 
the  case  may  appear  proper,"  did  not  ap- 
pear in  the  act  of  1897,  and  consequently 
the  decision  in  James  v.  Ocean  Coal  Co. 
[1904]  2  K.  B.  (Eng.)  213,  73  L.  J.  K.  B. 
N.  S.  915,  68  J.  P.  431,  52  Week.  Rep.  497, 
90  L.  T.  N.  S.  834,  20  Times  L.  R.  483, 
did  not  apply  to  the  present  case.  In 
the  James  Case  it  was  held  that  the  amount 
originally  fixed  as  the  compensation  was 
not  subject  to  variation  by  reason  of  a 
fall  in  wages  in  the  workman's  line  of 
work. 

In    Black    v.    Merry    [1909]    S.    C.    1150, 

46  Scot.  L.  R.  812,  and  in  Jamieson  v.  Fife 
Coal  Co.   (1903)   5  Sc.  Sess.  Cas.  5th  series 
(Scot.)  958  (decided  under  the  act  of  1897) 
it  was  held  that  a  workman  is  not  entitled 
to  compensation  in  respect  to  the  diminution 
of  his  earnings  after  he   returns   to   work, 
which    is   due   to   a   general   fall   in   wages, 
and   not   to   any   supervening   incapacity. 

siPaterson    v.    Moore    [1910]    S.    C.    29, 

47  Scot.  L.  R.  30,  3  B.  W.  C.  C.  541.     The 
Lord  President  said:     "It  seems  to  me  that 
the  man's  wage-earning  capacity  is  a  per- 


WORKMAN  TOTALLY  OR  PARTIALLY  INCAPACITATED. 


145 


sion,  "the  average  amount  which  he  may 
be  able  to  earn  after  the  accident,"  is 
not  limited  to  earnings  under  an  em- 
ployer, but  includes  earnings  in  a  private 
business.52 

The  county  court  judge  had  no  juris- 
diction to  make  an  award  on  the  sliding 
schedule,63  or  to  make  a  prospective 
award  to  terminate  at  a  future  date;  he 
can  deal  only  with  the  present  condition 
of  the  workman.54 

As  a  general  rule,  a  workman  is  not 


entitled  to  full  compensation  if  he  can 
procure  light  work  which  he  is  able  to 
do,55  and  it  is  his  duty  to  use  diligent 
efforts  to  procure  such  work.56  It  has 
sometimes  happened  that  a  workman,  al- 
though capable  of  doing  light  work,  was 
unable  to  obtain  it,  and  the  cases  are 
not  entirely  harmonious  as  to  the  effects 
of  this  situation.  It  has  been  held  that 
the  employer  cannot  be  compelled  to  fur- 
nish light  work  for  the  workman  per- 
manently,57 and  that  he  is  not  bound  to 


fectly  different  thing  from  the  question  of 
what  profit  he  makes  in  a  business,  and  the 
learned  sheriff,  upon  the  statement  of  the 
case,  has  considered  nothing  else.  He  has 
taken  the  business  which  this  man  ran. 
He  has  taken  the  net  drawings,  then  he  has 
deducted  the  expenses;  he  has  allowed  for 
interest  upon  capital  at  a  fixed  sum,  and 
has  deducted  wages  which  he  paid  to  other 
persons,  and  then  the  remainder  he  has 
taken  as  the  wage-earning  capacity.  That 
seems  to  me  a  perfectly  different  thing. 
The  amount  remaining  may  be  his  wage- 
earning  capacity,  or  it  may  not.  But  you 
cannot  get  at  the  man's  wage-earning  ca- 
pacity by  finding  out  what  he  is  making  in 
business." 

52  Norman  v.  Walder  [1904]  2  K.  B. 
(Eng.)  27,  73  L.  J.  K.  B.  N.  S.  461,  6rt 
J.  P.  401,  52  Week.  Rep.  402,  90  L.  T. 
N.  S.  531,  20  Times  L.  R.  427,  6  W.  C.  C. 
124.  Collins,  M.  R.,  said:  "The  legisla- 
ture's intention  was  to  compensate  an  in- 
jured workman  for  his  loss, — that  is  to 
say,  his  loss  of  earning  power, — and  there- 
fore, I  think,  the  average  amount  which 
the  workman  is  able  to  earn  after  the 
accident  ought  not  to  be  limited  in  its 
meaning  so  as  to  exclude  everything  except 
what  he  receives  by  way  of  wages  from 
an  employer.  The  highest  weekly  payment 
that  the  act  allows  to  be  awarded  as  com- 
pensation is  half  the  average  weekly  earn- 
ings earned  before  the  accident,  which  shows 
that  compensation  under  the  act  was  not 
intended  to  be  a  complete  compensation. 
If  a  review  of  the  weekly  payment  is  de- 
sired under  fl  12,  the  whole  situation  must 
be  looked  at.  The  arbitrator  should  find 
out  how  far  the  workman's  money-earn- 
ing capacity  has  been  altered;  and  if  it  is 
as  good  as  it  was  before  the  accident,  the 
fact  should  not  be  ignored,  even  though 
the  money  made  by  the  workman  is  not 
received  by  him  as  wages  paid  him  by  an 
employer." 

53Newhouse  v.  Johnson  (1911)  5  B.  W. 
C.  C.  (Eng.)  137  (award  was  so  many 
shillings  per  week  or  two  thirds  of  the 
difference  between  f  1  and  workman's  week- 
ly earning,  whichever  should  be  less) ;  Wal- 
ton v.  South  Kirby,  F.  &  H.  Colliery  (1912) 
107  L.  T.  N.  S.  (Eng.)  337,  5  B.  W.  C.  C. 
640  (award  was  fl  per  week  until  a  day 
certain,  10s.  a  week  for  four  months  there- 
after, and  then  a  penny  a  week). 

54  Baker  v.  Jewell   [1910]  2  K.  B.   (Eng.)  j 
673,  79  L.  J.  K.  B.  N.  S.   1092,  103  L.  T. 
L.R.A.1916A.  ]0 


N.  S.  173,  3  B.  W.  C.  C.  503;  Allen  v. 
Thomas  Spowart  &  Co.  (1906)  43  Scot. 
L.  R.  599;  Evans  v.  Barrow  Haematite  Steel 
Co.  (1914)  7  B.  W.  C.  C.  (Eng.)  681. 

SSMcNamara  v.  Burtt  (1911)  4  B.  W. 
C.  C.  (Eng.)  151. 

An  award  in  favor  of  the  employer  will 
be  sustained  where  the  evidence  showed 
that  the  workman  was  able  to  do  light 
work  and  many  of  his  pains  were  imagi- 
nary. Price  v.  Burnyeat  (1907)  2  B.  W. 
C.  C.  (Eng.)  337. 

The  order  of  the  county  court  judge 
reducing  the  compensation  payable  to  a 
minor  workman  who  had  been  injured, 
based  upon  the  ground  that  the  minor  had 
refused  to  do  light  work  offered  him,  will 
be  discharged  where,  because  of  a  change 
in  his  solicitors,  the  minor  had  been  un- 
able to  offer  evidence  as  to  his  condition. 
Thornber  v.  Durkin  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  341,  7  B.  W.  C.  C.  548. 

56  A  county  court  judge  is  entitled  to 
reduce  the  compensation  being  paid  to  an 
injured  workman,  where  he  finds  that  the 
workman  was  able  to  do  light  work,  but 
had  made  no  effort  to  find  any,  and  claimed 
apparently  that  it  was  the  duty  of  the 
employers  to  furnish  him  with  light  work 
which  he  could  do.  Williams  v.  Ruabon 
Coal  &  Coke  Co.  [1914]  W.  C.  &  Ins.  Rep. 
(Eng.)  32,  7  B.  W.  C.  C.  202. 

A  county  court  judge  may  reduce  pay- 
ment where  evidence  is  given  that  the 
workman  is  able  to  do  light  work,  although 
it  is  not  shown  that  he  had  been  offered 
any  by  the  employer  or  could  get  any, 
but  it  did  not  appear  that  he  had  sought 
any.  Anglo-Australian  Steam  Nav.  Co.  v. 
Richards  (1911)  4  B.  W.  C.  C.  (Eng.)  247. 

The  county  court  judge  is  justified  in 
reducing  the  compensation  of  a  workman 
who  had  lost  an  arm,  from  11s.  per  week 
to  7s.  6d.,  where  it  appeared  that  the  work- 
man, apart  from  the  loss  of  his  arm,  was 
otherwise  physically  fit,  was  young  and  in 
good  health  during  the  five  years  which 
had  elapsed  since  his  injury,  had  made  no 
attempt  to  secure  light  work  otherwise 
than  to  make  a  formal  application  to  his 
former  employers  for  such  work,  which 
they  were  unable  to  give  him.  Silcock  v. 
Golightly  [1915]  1  K.  B.  (Eng.)  748,  84 
L.  J.  K.  B.  N.  S.  499,  112  L.  T.  N.  S. 
800,  50  L.  J.  55,  [1914]  W.  C.  &  Ins.  Rep. 
164,  [1915]  W.  N.  33,  8  B.  W.  C.  C.  48. 

W  The  employer  cannot  guarantee  perpet- 
ual employment  in  view  of  the  fluctuation 


146 


WORKMEN'S  COMPENSATION. 


furnish  light  work  when  he  has  not  got 
it ;  58  nor  can  the  employer  guarantee  the 
workman  against  the  fluctuations  of  the 
labor  market.59  The  court  of  appeal  has 
declared  that  the  employer,  upon  prov- 
ing that  the  workman  is  able  "to  do  any 
kind  of  light  work,"  is  entitled  to  have 
the  compensation  reduced,  and  there  is 
no  obligation  resting  upon  the  employer 
to  show  that  he  can  get  such  work  to 
do.60  But  it  had  been  previously  held 
by  the  same  court  that  where  the  coun- 
ty court  judge  has  found  that  the  work- 
man was  capable  of  doing  "some  light 
work  if  he  could  obtain  it,"  there  was 
a  burden  upon  the  employer  to  show  that 
there  was  work  of  that  character  ob- 


tainable.61 And  in  another  earlier  case, 
full  compensation  was  restored  where  the 
workman,  who  had  injured  his  hand,  had 
partially  recovered  and  had  been  earn- 
ing wages  somewhat  less  than  he  had 
formerly  earned,  but  had  been  discharged 
and  was  unable  to  secure  other  light 
work,  although,  as  was  expressly  found 
by  the  county  court  judge,  he  was  fully 
capable  of  doing  light  work  which  did 
not  require  the  full  use  of  his  hand.62 
The  conflict  in  these  decisions  of  the 
court  of  appeal  is  shown  by  the  extract 
quoted  below  from  a  Scotch  decision.65 
The  House  of  Lords  has  laid  down  the 
principle  that  "incapacity  for  work" 
also  means  incapacity  to  get  work  be- 


of  the  labor  market.  Gray  v.  Reed  [19131 
W.  C.  &  Ins.  Rep.  (Eng.)  127,  108  L.  T. 
N.  S.  53,  6  B.  W.  C.  C.  43. 

58Dobby  v.  Pease  (1909)  2  B.  W.  C.  C. 
(Eng.)  370. 

59  Gray  v.  Reed  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)    127,   108   L.   T.   N.   S.   53,  6  B.  W. 
C.   C.   43;    Cardiff  Corp.   v.   Hall    [1911]    1 
K.   B.    (Eng.)    1009,   80   L.   J.   K.   B.   N.   S. 
644,  104  L.  T.  N.  S.  467,  27  Times  L.  R. 
339,  4  B.  W.  C.  C.  159;   Clark  v.  Gaslight 
&  Coke  Co.   (1905)    21  Times  L.  R.   (Eng.) 
184. 

60  Cardiff   Corp.   v.   Hall    [1911]    1   K.   B. 
(Eng.)    1009,    80    L.    J.    K.    B.    N.    S.    644, 
104  L.  T.  N.   S.  467,  27   Times  L.  R.  339, 
4  B.  W.  C.  C.  159. 

To  the  same  effect,  Guest  v.  Winsper 
(1911)  4  B.  W.  C.  C.  (Eng.)  289. 

In  the  Cardiff  Case,  Bulkley,  L.  J.,  said: 
"To  express  the  same  thing  more  briefly, 
inability  to  earn  for  the  purposes  of  sched. 
I.  fl  3,  is  inability  to  get  employment  ow- 
ing to  some  incapacity  for  work  personal 
to  the  workman,  to  the  exclusion  of  in- 
ability to  get  employment  owing  to  the 
state  of  the  labor  market.  The  employer 
may  be  called  an  insurer  of  'capacity  for 
work,'  but  he  is  not  an  insurer  of  a  'right 
to  work.' " 

In  Carlin  v.  Stephen  [1911]  S.  C.  901, 
48  Scot.  L.  R.  862,  it  was  shown  that 
the  workman  was  able  to  do  light  work 
and  that  the  employers  had  offered  him 
such  work.  Lord  Salvesen  was  of  the 
opinion  that  the  compensation  might  have 
been  reduced  on  the  first  finding  alone. 

61  It  is  difficult  to  reconcile  the  decision 
in   the   Cardiff   Case   with   that   in   Proctor 
v.  Robinson    [1911]    1   K.   B.    (Eng.)    1004, 
80   L.   J.   K.   B.   N.   S.   641,  3   B.   W.   C.   C. 
41,  where  it  was  held  that  in  the  absence 
of  any  evidence  that  the  workman  is  able 
to  procure  light  work,  such  as  he  is   able 
to   do,   no   reduction   of   compensation   will 
be    made.      Fletcher    Moulton,    L.    J.,    who 
was    a    member    of    both    courts    rendering 
the  decisions,  attempts  to  distinguish  them 
upon  the  ground  that  in  the  Proctor  Case 
the   finding   was   that   he   could  do   "some" 
light  work  if  he  could  find  it.     But  Cozens- 
Hardy,  M.  R.,  dissented  in  the  Cardiff  Case, 
L.R.A.1916A. 


and  reiterated  his  views  as  expressed  in 
the  Proctor  Case:  "Either  they  (the  em- 
ployers) should  first  obtain  some  work 
which  the  workman  could  do,  and  offer  it 
to  him,  and  give  evidence  of  this,  or  else 
they  should  give  evidence  that  there  is  some 
chance  of  the  workman  obtaining  a  particu- 
'lar  kind  of  light  work  in  the  district.  Here 
the  employers  failed  to  prove  the  case 
they  put  forward.  The  burden  was  upon 
them,  and  they  have  failed  to  discharge  it." 

62  The   decision    in    Clark    v.   Gaslight    & 
Coke  Co.  (1905)   21  Times  L.  R.  184,  under 
the  earlier  act,  was  to  the  effect  that  where 
the   workman's   injury   left   him   physically 
fit  for  a  narrow  circle  of  occupations  only, 
and  he   is  unable   to   find   work   in   any  of 
them,    he    is    entitled    to    compensation    as 
being   wholly  incapacitated.     But  Fletcher- 
Moulton,  L.  J.,  said  that  there  was  noth- 
ing  in   this   decision   which   conflicted   with 
his  conclusions  in  the  Cardiff  Case. 

63  In  Carlin  v.  Stephen   [1911]   S.  C.  901, 
48    Scot.    L.    R.   862,    5    B.    W.    C.    C.    486, 
Lord    Salvesen   said:      "It   is   not   easy   to 
reconcile   this   decision   with   that   in   Proc- 
tor's Case,  for,  as  the  master  of  the  rolls 
pointed   out,   not   only   had   the   employers 
failed    to    adduce   any   evidence    that    light 
work  could   be   obtained  by   the   workman, 
but  the  workman  had  given  affirmative  evi- 
dence that  his  reasonable  and  repeated  ef- 
forts to  obtain  such  work  had  been  unsuc- 
cessful.    The  judges,  however,  who  formed 
the  majority,  found  themselves  able  to  dis- 
tinguish and  explain   the  previous  decision 
to   which   one   of   them — Fletcher   Moulton, 
L.  J. — had  been  a  party,  and  thought  that 
there   was   abundant   evidence   justifying   a 
review    of    the    former    award.      There,    as 
here,  there  was  no  evidence  whatever  ten- 
dered by  the  employer  that  the  workman 
was  able   to   earn  a   specific   weekly   wage, 
and  therefore  the  Cardiff  Case  may  be  taken 
as    affirming    the    right    of    the    arbitrator 
to  diminish  the  compensation  without  mak- 
ing  a   finding   in    fact    to   that   effect.      In 
an  elaborate  judgment  in  which  he  reviews 
the  previous  cases,  Fletcher  Moulton,  L.  J., 
negatived   the   principle   of   law   for   which 
the  workman  contended:     'That  where  par- 
tial incapacity  has  been  caused  by  an  acci- 


WORKMAN  TOTALLY  OR  PARTIALLY  INCAPACITATED. 


147 


cause  of  the  injured  condition  of  the 
workman.64  And  again  it  has  been  held 
by  the  same  House  that  a  workman  who, 
although  capable  of  doing  light  work,  is 
prevented  because  of  the  injuries  from 
obtaining  it,  is  entitled  to  have  the  award 
based  upon  his  ability  to  do  light  work 
reviewed.66  It  is  apparently  impossible 
to  derive  any  general  principle  from 
these  cases,  especially  as  the  Hous  of 
apparently  approves  the  reasoning  of  the 
of  the  court  of  appeal  in  the  Cadiff  Case. 

In  one  case  the  court  rejected  the 
rather  curious  contention  on  the  part 
of  the  counsel  for  the  employer,  that  a 
workman  who  had  been  injured  and  was 
unable  to  procure  light  work  should  have 
worked  without  pay  if  in  that  way  he 
could  have  recovered  his  earning  capac- 
ity in  part,  at  least,  and  that  he  could 
easily  have  procured  work  under  these 
conditions.66 

It  has  been  held  that  the  county  court 
judge  may  diminish  compensation  with- 
out evidence  as  to  the  exact  amount  the 
workman  can  earn  at  light  labor.87  Up- 

dent  the  employers  are  bound  to  show  not 
only  that  the  workman  is  capable  of  doing 
other  work,  but  that  he  is  able  to  obtain 
it,  and  that  otherwise  he  is  entitled  to  an 
award  as  for  total  incapacity.'  The  judg- 
ment is  not  binding  on  us,  but  has  the 
weight  which  attaches  to  the  considered 
opinions  of  two  such  eminent  judges  as 
Fletcher  Moulton  and  Buckley,  L.  J.  J.  I  have 
no  difficulty  in  agreeing  with  the  result  to 
which  they  arrived.  My  only  doubt  is 
as  to  whether  the  court  of  appeal  had  not 
gone  too  far  in  the  earlier  cases." 

64  Ball  v.  Hunt  [1912]  A.  C.   (Eng.)  496, 
81   L.  J.  K.  B.  N.  S.  782,  106  L.  T.  N.  S. 
911,  28   Times  L.  R.  428,  56   Sol.  Jo.  550, 
5   B.   W.   C.   C.  459.     Lord   Atkinson   said: 
"The  words  'incapacity  for  work'  may  mean 
physical  inability  to  do  work  so  as  to  earn 
wages,   or   it   may   mean   inability   to   earn 
wages   by   reason   of   inability   to   get   em- 
ployment  due   to   the   belief   of   employers 
in  the  unfitness  of  the  workman  to  perform 
week    owing    to    the    injury    they    perceive 
he  has  sustained." 

65  Macdonald   v.   Wilsons   &   C.   Coal   Co. 
[1912]   A.  C.    (Eng.)   513,   [1912]   S.  C.    (H. 
L.)   74,  81  L.  J.  P.  C.  N.  S.  188,  106  L.  T. 
N.  S.  905,  28  Times  L.  R.  431,  56  Sol.  Jo. 
550,   [1912]   W.  N.  145,   [1912]   W.  C.  Rep. 
302,  5  B.  W.  C.  C.  478,  49  Scot.  L.  R.  708. 
In  this  case  the  injured  workman  had  been 
employed    for    a    time    by    the    employers 
but  was  discharged  and  was  unable  to  find 
work  with  other  employees  because  of  his 
condition.      Earl    Loreburn    said:  •    "Ought 
we  to  say  that  if  a  man,  though  physically 
fit    for    some    work,    is    prevented    by    the 
consequences  of  the  injury  from  obtaining 
it, — in   other  words  is  disabled  from   earn- 
ing   wages, — that   nevertheless    he    is    'able 
to  earn*  wages,  and  is  not  under  any  inca- 
L.R.A.1916A. 


on  the  question  of  the  amount  of  wages 
a  workman  is  able  to  earn  at  light  labor, 
the  arbitrator  is  entitled  to  act  upon  his 
own  knowledge  of  the  labor  market  and 
the  condition  of  the  trade.68  But  if  the 
workman  offers  to  prove  that  he  had 
tried,  and  was  in  fact  not  able,  to  pro- 
cure light  work,  the  arbitrator  must  con- 
sider the  evidence  and  act  upon  it,  al- 
though he  may  consider  it  along  with 
his  own  local  knowledge  of  the  condi- 
tions of  the  labor  market.69 

If  the  workman  is  not  able  to  per- 
form the  light  work  offered  him,  any 
award  based  upon  his  ability  to  do  such 
light  work  may  be  reviewed.70  Whether 
or  not  a  workman  can  do  the  light  work 
offered  to  him  by  the  employer  is  a 
question  of  fact,  and  the  finding  of  the 
arbitrator  will  not  be  disturbed  if  there 
is  evidence  to  support  it.71  But  he  can- 
not make  an  award  in  favor  of  the  work- 
man without  ascertaining  his  capacity  to 
do  the  work,  merely  upon  the  ground  that 
the  workman  followed  his  doctor's  ad- 
vice in  refusing  to  do  the  work.78  Upon 


pacity  for  work?  He  is  under  an  inca 
pacity  if  his  condition  makes  his  labor 
unsalable  or  salable  only  at  a  less  wage." 
Boag  v.  Lochwood  Collieries  [1910]  S.  C. 
51,  47  Scot.  L.  R.  47,  3  B.  W.  C.  C.  549, 
was  disapproved. 

66  Upon  the  liquidation  of  the  employers, 
an    indemnity   company   in   which   the   em- 
ployers   were    insured    cannot    contest    lia- 
bility to  pay  compensation  on  the  ground 
that    the   workman   was   able   to   do   light 
work,  and  by  doing  it  would  have  removed 
the   incapacity,   where   there   was   evidence 
that  the  man  was  unable  to  procure  any 
light    work.      Bonsall    v.    Midland    Colliery 
Owners  Mut.  Indemnity  Co.    [1914]   W.  C. 
&  Ins.  Rep.   (Eng.)   331,  7  B.  W.  C.  C.  613. 

67  Roberts  v.  Hall  (1912)   106  L.  T.  N.  S. 
(Eng.)    769,    [1912]   W.   C.  Rep.   269,  5  B. 
W.    C.    C.    331;    Carlin    v.    Stephen    [1911] 
S.  C.  901,  48  Scot.  L.  R.  862,  5  B.  W.  C.  C. 
486. 

68  Roberts  v.  Hall   (1912)   106  L.  T.  N.  S. 
(Eng.)    769,  5  B.  W.  C.  C.  331. 

69  Dyer  v.  Wilsons'  &  C.  Coal  Co.   (1914) 
52  Scot.  L.  R.  114,  8  B.  W.  C.  C.  367. 

70  In   Rex   v.   Templer,    (1911;    Div.   Ct.) 
132  L.  T.  Jo.   (Eng.)   203,  it  was  held  that 
the  county  court  judge  had  jurisdiction  to 
entertain   an   application  to  review   weekly 
payments  being  made  under  an   award  by 
a    committee    representing    the    employees 
and  workmen,  which  award  presumed  that 
the    workmen    could    perform    light    labor 
which  was  furnished  by  the  employer,  but 
which,  as   a   matter  of  fact,  the   applicant 
found  himself  unable  to  perform. 

7lThayne  v.  Gray  [1915]  W.  C.  &  Ins. 
Rep.  (Eng.)  64,  8  B.  W.  C.  C.  17- 

72  Cowan  v.  Simpson  (1909)  3  B.  W.  C. 
C.  (Eng.)  4. 


148 


WORKMEN'S  COMPENSATION. 


an  application  to  diminish  weekly  pay- 
ments where  the  county  court  judge 
found  that  the  man  was  fit  for  light 
work,  and  where  the  evidence  was  undis- 
puted that  the  employers  had  offered  him 
light  work,  the  county  court  judge  is  not 
entitled  to  make  an  order  refusing  to 
•diminish  the  payment  without  requiring 
•evidence  from  the  workman  as  to  his 
condition  and  as  to  his  probable  earn- 
ings.73 

What  is  a  suitable  occupation  for  a 
workman  who  has  not  fully  recovered  is 
primarily  a  question  of  fact  depending 
upon  his  condition  and  the  nature  of  the 
work  in  question.74  The  county  court 
judge  may  find  that  mining  coal  is  not  a 
"suitable  occupation"  for  a  man,  one  of 
whose  eyes  is  defective.75  So  the  work 
•of  stoking  a  furnace  may  be  found  un- 
suited  for  a  workman  who  has  lost  one 
•eye  by  accident,  where  the  other  eye  is 
also  affected.76  But  a  miner  who  had 
lost  an  eye  while  at  work  at  his  employ- 
ment cannot  claim  upon  his  recovery 
that  the  same  employment  is  not  suit- 
able for  him,  merely  because  of  the  fact 
that  if  a  similar  accident  befalls  him 
in  the  future,  the  consequence  will  be 
the  total  loss  of  his  eyesight.77  An 


arbitrator,  however,  is  not  bound  by  this 
decision  to  find  that  work  as  a  miner  at 
the  coal  face  is  suitable  for  a  miner  who 
had  recently  lost  an  eye  at  such  work.78 

Whether  or  not  the  refusal  of  a  work- 
man to  do  light  work  is  unreasonable  is 
a  question  of  fact.79  But  the  arbitrator 
is  not  justified  in  holding  that  light  work 
is  not  suitable  for  a  workman  who  had 
lost  an  eye,  merely  upon  the  workman's 
opinion  that  the  fumes  from  a  gas  plant 
would  probably  cause  an  irritation  to 
his  remaining  eye.80  A  workman  may  be 
found  to  be  acting  unreasonably  in  re- 
fusing to  do  light  work,  although  the  re- 
fusal is  based  upon  the  advice  of  his 
doctor.81  The  county  court  judge  may 
find  that  the  workman's  refusal  to  per- 
form light  labor  is  unreasonable,  al- 
though the  employer  has  not  specifically 
alleged  this  fact  in  his  answer.82 

In  fixing  the  amount  of  the  weekly 
payment,  regard  must  be  had  to  any  pay- 
ment, allowance,  or  benefit  which  the 
workman  may  have  received  from  the 
employer  during  the  period  of  his  in- 
capacity.83 The  fees  paid  by  the  em- 
ployer for  treatment  given  to  the  injured 
employee  at  a  hospital  may  be  deducted 
from  the  compensation  paid  to  the  work- 


73  Gray    v.    Reed    [1913]    W.    C.    &    Ins. 
Rep.    (Eng.)    127,   108   L.    T.   N.    S.   53,    6 

B.  W.  C.  C.  43. 

74  The  county  court  judge  is  justified  in 
failing   to   reduce   the    compensation    given 
to    an    injured    employee,    where    he    found 
that  the  man  could  do  the  old   work,  but 
that   it   would   be   dangerous   for   him   and 
that   it   was   not   suitable   employment   be- 
cause of  his  injury.     Dinnington  Main  Coal 
Co.  v.  Bruins  [1912]  W.  C.  Rep.  (Eng.)  173, 
5  B.  W.  C.  C.  367. 

75  Eyre    v.    Houghton    Main    Colliery   Co. 
t!910]   1  K.  B.    (Eng.)   695,  79  L.  J.  K.  B. 
N.  S.  698,  102   L.  T.  N.  S.  385,  26  Times 
L.  R.  302,  54   Sol.  Jo.   304,  3  B.  W.  C.  C. 
250. 

76  Thompson  v.  Newton    (1914)    7   B.  W. 

C.  C.    (Eng.)   703. 

77  Law    v.    Baird    [1914]    S.    C.    423,    51 
Scot.  L.  R.  388,   [1914]   W.  C.  &  Ins.  Rep. 
140,   7   B.   W.   C.  C.   846. 

To  the  same  general  effect  was  the  deci- 
sion in  Housley  v.  Hadfields  (1915)  8  B. 
W.  C.  C.  (Eng.)  497,  where  it  was  held  that 
a  steel  settler  could  not  refuse  to  do  his 
old  work  merely  because  he  was  afraid 
that  he  might  lose  the  sight  of  his  other 
«ye,  with  the  result  that  he  would  be  to- 
tally blind. 

78Burt  v.  Fife  Coal  Co.  (1914)  52  Scot, 
L.  R.  51,  8  B.  W.  C.  C.  350. 

79Furness  v.  Bennett  (1910)  3  B.  W.  C. 
C.  (Eng.)  195. 

An  offer  by  the  employers  to  give  a  work- 
man injured  at  Belfast,  work  in  Dublin 
at  his  old  wage,  may  be  found  to  be  rea- 
sonable, the  employers  having  discontinued 
L.R.A.1916A. 


their  business  in  Belfast.    Wallis  v.  M'Neice 
(1912)   46  Ir.  L.  T.  202,  6  B.  W.  C.  C.  445. 
SOAshmore  v.  Lillie   [1915]  W.  C.  &  Ins. 
Rep.  (Eng.)  7,  8  B.  W.  C.  C.  89. 

81  Higgs  v.  Unicume  [1913]  1  K.  B.  (Eng.) 
595,   82  L.   J.   K.  B.  N.   S.  369,   108   L.   T. 
NT.  S.   169,   [1913]   W.  N.  36,   [1913]   W.  C. 
&   Ins.  Rep.   263,  6  B.  W.  C.  C.   205.     See 
also  Cowan  v.  Simpson   (1909)   3  B.  W.  C. 
C.   (Eng.)   4,  cited  supra,  note  72. 

In  both  of  these  cases  it  was  contended 
that,  inasmuch  as  the  workman  followed 
the  advice  of  his  doctor,  he  could  not  be 
considered  to  have  acted  unreasonably,  cit- 
ing Tutton  v.  The  Majestic  [1909]  2  K 

B.  (Eng.)    54,   78   L.   J.   K.   B.   N.    S.    530, 
100  L.  T.  N.   S.  644,  25  Times  L.  R.  482, 
53    Sol.    Jo.    447,    2    B.    W.    C.    C.    346,    in 
which   case   it   was   held   that    a   workman 
did    not    act    unreasonably    in    refusing    to 
have  an  operation  performed  where  his  doc- 
tor advised   against   it.     But  in   the  Higgs 
Case,  Hamilton,  L.  J.,  distinguished  between 
a  case  in  which  the  workman  neither  had 
nor  could  be  expected  to  have  any  compe- 
tent  knowledge,   and   a   case   in   which   the 
circumstances    were    peculiarly    within    the 
knowledge  of  the  workman,  as  his  ability 
to  do  light  work. 

82  Potts  v.  Guildford    (1914)    7   B.   W.  C. 

C.  (Eng.)    675. 

83  An   employer   who,   for   a   considerable 
portion  of  time  after  an  accident,  had  paid 
the  workman  considerably  more  than  half 
wages   as   compensation,  and   then   reduced 
the   payment   to   half   wages,   but    in   com- 
puting  the   half   wages   did   not   take   into 
consideration  certain  allowances  which  were 


AVERAGE  WEEKLY  EARNINGS. 


men.84  But  no  regard  shall  be  had  of 
any  payments  made  to  the  workman 
which  the  employer  was  legally  bound  to 
make.85 

e.  "Average   weekly   earnings"    (J  2) . 
1.  In  general. 

In  the  case  of  a  fatal  accident  to  a 
workman  who  has  for  the  three  years 
preceding  the  accident  been  in  the  em- 
ployment of  the  same  employers,  the  com- 
pensation is  based  on  the  total  of  his 
earnings  during  those  three  years.  But 
in  cases  where  there  is  a  fatal  accident 
after  a  period  of  employment  amount- 
ing to  less  than  three  years,  and  in  cases 
where  total  or  partial  incapacity  results 
from  the  injury,  the  "average  weekly 
earnings"  of  the  workman  constitute 
the  basis  of  computation  for  the  assess- 
ment of  the  amount  recoverable.86 

The  phrase  "average  weekly  earnings" 
is  to  be  taken  in  the  natural  meaning  of 
the  term,87  and  has  been  defined  as  the 
total  amount  actually  earned  by  the 
workman  during  his  employment  divided 
by  the  number  of  weeks  during  which  or 
during  part  of  which  he  was  employed.88 
In  the  absence  of  anv  agreed  rate  of 


wages,  an  agreement  for  the  usual  rate 
for  that  particular  work  in  that  local- 
ity will  be  inferred.89 

In  the  case  of  minors,  it  is  neces- 
sary to  read  into  schedule  1,  f  3,  the 
"probable  earnings"  of  a  minor  in  place 
of  his  "average  earnings." 90  In  com- 
puting the  average  weekly  earnings  of" 
a  casual  laborer  hired  by  the  hour,  it  is 
not  competent  to  take  into  account  the 
probability  of  his  continuing  in  the  em- 
ployment.91 

The  average  earnings  of  a  workman 
constitute  a  question  of  fact;  and  if 
there  is  evidence  to  support  the  county 
court  judge's  conclusion,  it  will  not  be 
interfered  with.92 

Under  the  act  of  1897,  the  only  prop- 
er basis  for  the  assessment  of  the  amount 
of  compensation  with  reference  to  the 
average  weekly  earnings  of  the  workman! 
was  to  consider  the  period  of  actual 
employment  under  his  own  employer, 
and  the  sum  actually  received  by  him 
from  that  employer.  An  arbitrator  was 
not  entitled  to  take  into  consideration 
what  the  workman  might  possibly  have 
earned  in  the  employment  of  other  em- 
ployers.93 But  this  frequently  worked 


paid  to  the  workman,  is  entitled,  upon 
a  subsequent  application  for  arbitration, 
to  have  the  excess  paid  under  the  first  ar- 
rangement offset  against  the  arrears  due 
the  workman  under  the  second  arrange- 
ment. Porter  v.  Whitbread  [1914]  W.  C. 
&  Ins.  Rep.  (Eng.)  59,  7  B.  W.  C.  C.  205. 
Cozens-Hardy,  M.  R.,  said:  "In  the  case 
of  an  ordinary  workman,  I  think  you  are 
bound  to  take  into  consideration  all  these 
payments.  The  opposite  view  would  strike 
me  as  almost  so  absurd  as  not  to  be  per- 
missible at  all.  Any  payments  in  respect 
of  the  accident  must  be  taken  into  account." 
An  amount  paid  the  workman  under  an 
unregistered  agreement,  which  amount  was 
tendered  and  received  as  full  settlement  of 
the  employer's  liability  to  the  workman, 
must  be  taken  into  account  where  the  regis- 
trar refused  to  register  the  agreement  and 
the  county  court  to  whom  the  matter  was 
referred  awarded  compensation.  Horsman 
v.  Glasgow  Nav.  Co.  (1909)  3  B.  W.  C.  C. 
(Eng.)  27. 

84  Suleman    v.    The   Ben   Lomond    (1909; 
C.  C.)    126  L.  T.  Jo.    (Eng.)    308,  2  B.  W. 
C.  C.  499. 

Maintenance  and  medical  treatment  re- 
ceived by  an  injured  seaman  in  a  hospital, 
which  was  subsequently  paid  for  by  the 
employer,  may  be  found  to  be  a  benefit 
received  by  the  seaman  during  the  period 
of  incapacity.  Sorensen  v.  Gaff  [1912]  S. 
C.  1163,  49  Scot.  L.  R.  896,  6  B.  W.  C.  C. 
279. 

85  In  McDermott  v.  The  Tintoretto  [1911] 
A.  C.   (Eng.)   35,  80  L.  J.  K.  B.  N.  S.  161, 
103  L.  T.  N.  S.  769,  27  Times  L.  R.  149, 
L.R.A.1916A. 


55  Sol.  Jo.  124,  11  Asp.  Mar.  L.  Gas.  515y 
4  B.  W.  C.  C.  123,  48  Scot.  L.  R.  728,  it 
was  held  that  the  provisions  of  paragraph! 
3  of  the  first  schedule  do  not  require  that,, 
in  fixing  the  compensation  of  a  seaman  who- 
was  totally  incapacitated  by  accidental  in- 
jury, regard  must  be  had  to  the  payment 
of  any  wages  and  maintenance  which  the 
vessel  was  required  to  give  him  under 
the  merchants'  shipping  acts,  where  the 
applicant  did  not  ask  for  compensation  for 
the  period  prior  to  his  return  to  England. 

86  Perry  v.  Wright  [1908]  1  K.  B.  (Eng.) 
441,  77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N 
S.  327,  24  Times  L.  R.  186,  1  B.  W.  C.  C. 
351 

87  (Eng.)  Ibid. 

88  Fleming  v.  Lochgelly  Iron  &  Coal  Cbv 
(1902)   4  Sc.  Sess.  Cas.  5th  series,  890,  39 
Scot.  L.  R.  684,  10  Scot.  L.  T.  114. 

89  Jones  v.  Walker   (1899;   C.  C.)    105  L. 
T.  Jo.  (Eng.)  579,  1  W.  C.  C.  142. 

90  Edwards    v.    Alyn    Steel    Tinplate    Co. 
(1910)  3  B.  W.  C.  C.  (Eng.)  141. 

91  Case    v.    Colonial    Wharves    (1905)    53 
Week.  Rep.  (Eng.)  514. 

92  Williams  v.  Wynnstay  Collieries  (1910) 
3  B.  W.  C.  C.  (Eng.)  473. 

93  Price  v.  Marsden  [1899]  1  Q.  B.  (Eng.) 
493,   68  L.  J.  Q.  B.  N.   S.  307,  47   Week. 
Rep.  274,  80  L.  T.  N.  S.  15,  15  Times  L.  R. 
184;  Williams  v.  Poulson   (1899)   16  Times 
L.  R.    (Eng.)   42,  63  J.  P.  757,  2  W.  C.  C. 
126;  Small  v.  M'Cormick  (1899)  1  Sc.  Sess. 
Cas.  5th  series,  883,  36  Scot.  L.  R.  700,  7 
Scot.  L.  T.  35. 

Where    a   workman    who   had    been    em- 
ployed by  contractors  in  a  mine  was  dis- 


150 


WORKMEN'S  COMPENSATION. 


hardships,  upon  the  workman,  and  by 
the  express  provisions  of  schedule  1, 
paragraph  2  (a),  of  the  act  of  1906,  the 
court  is  empowered  in  cases  where 
the  shortness  of  the  time  during  which 
the  workman  has  been  in  the  employment 
of  his  employers,  or  the  casual  nature 
of  his  employment,  or  the  terms  of  the 
employment  render  it  impracticable  to 
compute  the  rate  of  remuneration  at  the 
date  of  the  accident,  to  resort  for  as- 
sistance in  estimating  that  rate,  to  mat- 
ters relating  to  workmen  of  the  same 
grade  employed  at  the  same  work  for 
the  same  employer,  or  even  should  this 
fail,  to  persons  in  the  same  grade  em- 
ployed in  the  same  class  of  employment 
in  the  same  district.94  Paragraph  2  (b) 


of  the  first  schedule  also  expressly  pro- 
vides for  the  consideration  of  wages 
earned  under  concurrent  contracts  of 
service,  so  that  the  arbitrator  may  now 
in  a  proper  case,  consider  earnings  re- 
ceived from  another  employer  than  that 
from  whom  compensation  is  sought. 

2.  Grades. 

The  word  "grade,"  as  used  in  sched- 
ule 1  (1)  (a),  has  no  technical  meaning.96 
It  does  not  refer  to  the  individual  char- 
acteristics of  the  workman,  but  to  the 
particular  rank  in  the  industrial  hier- 
archy occupied  by  the  workman,  such  as 
shepherd,  carter,  bricklayer,  etc.96  But, 
in  determining  the  question  of  average 
weekly  earnings  of  a  casual  workman, 


missed,  and  two  days  thereafter  secured 
employment  from  the  mine  master  in  the 
same  mine,  and  after  working  three  days 
was  injured,  his  earnings  under  the  con- 
tractors cannot  be  considered  in  fixing  his 
compensation.  Hunter  v.  Baird,  7  F.  (Scot.) 
304  (Ct.  of  Sess.)  as  cited  in  2  News'  Dig. 
Supp.  1570. 

In  Bartlett  v.  Tutton  [1902]  1  K.  B. 
(Eng.)  72,  71  L.  J.  K.  B.  N.  S.  52,  66  J.  P. 
196,  50  Week.  Rep.  149,  85  L.  T.  N.  S.  531, 
18  Times  L.  R.  35,  a  workman  employed  as 
a  casual  dock  laborer  to  work  for  a  day  met 
with  an  accident  in  the  course  of  his  em- 
ployment. He  was  paid  3s.  3d.  for  the  work 
done  by  him  up  to  the  time  of  the  acci- 
dent, being  at  the  rate  of  so  much  an 
hour  for  the  number  of  hours  he  had 
worked.  There  was  no  evidence  that  the 
workman  had  ever  before,  or  would  again, 
work  for  the  employers.  An  award  in  the 
workman's  favor  for  50  per  cent  of  18s., — 
which  the  judge  found  to  be  the  average 
weekly  earnings  of  an  ordinary  casual  dock 
laborer  in  the  port  of  Bristol  (where  the 
workman  worked),  taking  one  week  with 
another  throughout  the  year, — was  held  to 
be  erroneous,  as  there  were  materials  be- 
fore the  arbitrator  upon  which  it  was  pos- 
sible for  him  to  find  the  weekly  earnings 
of  the  workman  in  the  employment  of  the 
defendant. 

94  Perry  v.  Wright  [1908]  1  K.  B.  (Eng.) 
441,  77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N.  S. 
327,   24   Times   L.   R.   186,   1   B.   W.   C.   C. 
351. 

95  Barnett   v.  Port   of  London   Authority 
[1913]   2  K.  B.   (Eng.)   115,  82  L.  J.  K.  B. 
N.  S.  353,  108  L.  T.  N.  S.  277,  29   Times 
L.  R.  252,    [1913]   W.  C.  &  Ins.  Rep.   250, 
[1913]   W.  N.  35,  57  Sol.  Jo.  282,  6  B.  W. 
C.  C.  105. 

96  Perry  v.  Wright  [1908]  1  K.  B.  (Eng.) 
441,  77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N. 
S.  327,  24  Times  L.  R.  186,  1  B.  W.  C.  C. 
351.      In    this    case    the    workman    was    a 
casual   dock   laborer   who   worked   first    for 
one  stevedore  and  then   for  another,   "just 
as   a   job    turned    up,"    remaining   idle    be- 
tween jobs,  and  had  worked  but  two  days 
for    the    respondent    when    injured.      The 
L.R.A.1916A. 


county  court  judge  found  that  \i  was  im- 
practicable to  compute  the  rate  of  com- 
pensation, and  that  among  dock  laborers 
there  were  no  definite  grades;  but  that  the 
men  formed  themselves  into  "good"  and 
"bad,"  and  that  the  applicant  belonged  to 
the  latter  grade  because  of  his  poor  physique 
and  his  addiction  to  drink.  In  sending  the 
case  back  to  the  county  court  judge,  Cozens- 
Hardy,  M.  R.,  observed :  "I  think  the  learn- 
ed county  court  judge  has  misdirected  him- 
self as  to  the  meaning  of  the  word  'grade.' 
That  word  does  not  involve  or  depend  upon 
individual  characteristics.  Each  grade  may, 
and  indeed  must,  have  good  and  bad  members. 
The  good  and  the  bad  are  not  two  grades. 
I  think  the  case  must  go  back  to  the  learn- 
ed county  court  judge  to  decide  whether 
casual  dock  laborers  from  a  distinct  grade 
in  the  hierarchy  of  labor,  and,  if  so,  what 
are  the  average. earnings  in  that  grade.  He 
may  have  regard  to  these  average  earn- 
ings, but  he  will  not  be  bound  to  take  those 
average  earnings  as  the  basis  of  his  award. 
He  has  seen  Perry,  and  is  satisfied  that  he 
was  not  getting,  and  would  not  get,  the 
full  average.  But  Perry  must  not  be  put 
into  an  artificial  class  of  bad  workers  en- 
titled to  only  half  wages.  If,  however,  the 
county  court  judge  should  decide  that  casual 
dock  laborers  do  not  form  a  distinct  grade, 
it  will  then  be  necessary  to  estimate  the 
proper  compensation  as  best  he  can  with- 
out the  aid  afforded  by  the  proviso  in  § 
2 (a)."  Fletcher  Moulton,  L.  J.,  said:  "In 
considering  the  average  earnings  of  a  work- 
man of  the  same  grade  he  was  not  en- 
titled to  consider  whether  the  workman 
in  question  was  a  good  or  a  bad  speci- 
men. By  the  word  'grade'  the  act  refers, 
in  my  opinion,  to  a  class  of  employment, 
and  not  to  the  relative  merits  or  capabilities 
of  the  persons  in  that  class,  so  that  it  is 
an  error  to  talk  about  a  class  of  good  work- 
men and  a  class  of  bad  workmen  as  con- 
stituting different  grades.  The  relevant 
grade  in  this  case  was  that  of  casual  dock 
laborers  as  a  whole;  and  the  learned  judge 
was  entitled  to  have  regard  to  the  aver- 
age account  earned  by  such  laborers  in  the 
district,  but  was  not  entitled  to  separate 


GRADES  OF  EMPLOYMENT. 


151 


after  fixing  the  grade  to  which  he  be- 
longs, regard  must  then  be  had  to  the 
personal  qualifications  of  the  man.97 

Where  the  arrangements  are  such  that 
casual  dock  laborers  are  divided  into 
two  classes,  one  of  which  is  entitled  to 
employment  in  preference  to  the  other, 
the  two  classes  form  distinct  grades.98 
"Light  work"  furnished  to  an  injured 
workman  is  not  a  grade  of  employment,99 
and  there  is  no  grade  of  strike  breakers.1 

Any  step  from  one  grade  up  or  down 
to  another  is  a  change  of  employment  for 


the  purpose  of  estimating  the  average 
weekly  earnings  of  the  workman  "at  the 
time  of  the  injury."2  A  different  rule 
prevailed  under  the  act  before  it  was 
amended  in  1906  by  the  addition  of  the 
second  paragraph  of  schedule  I.8 

In  fixing  the  compensation  of  an  in- 
jured workman  who  had  served  the  same 
employer  in  different  capacities,  the  com- 
pensation must  be  based  on  the  wages 
the  workman  was  earning  in  the  grade 
of  employment  in  which  he  met  with 
the  accident.4  But  if  the  workman  is 


them  into  two  grades,  namely,  the  good 
and  bad  workmen,  and  consider  only  the 
average  amount  earned  by  those  whom  he 
included  in  the  latter  class." 

In  Cain  v.  Frederick  Leyland  &  Co.  [1908] 
1  K.  B.  (Eng.)  441,  77  L.  J.  K.  B.  N.  S. 
236,  98  L.  T.  N.  S.  327,  24  Times  L.  R. 
186,  1  B.  W.  C.  C.  368,  a  casual  shipwright 
was  injured  on  the  first  day  of  his  em- 
ployment. The  county  court  judge  found 
that  there  were  two  classes  of  casual  ship- 
wrights,— the  good  and  the  indifferent;  and 
fixed  the  mean  between  the  average  earned 
by  the  two  classes  as  being  the  average 
weekly  earnings  of  the  average  good  ship- 
wright, such  as  he  found  the  injured  work- 
man to  be,  and  his  conclusion  was  sustained 
by  the  court  of  appeal.  It  is  to  be  noted 
that  the  county  court  judge  did  not  make 
use  of  the  word  "grade,"  and  Fletcher  Moul- 
ton,  L.  J.,  said  that  there  was  nothing  in 
his  findings  that  could  be  excepted  to,  as 
a  matter  of  law. 

97  Cue  v.  Port  of  London  Authority 
[1914]  3  K.  B.  (Eng.)  892,  83  L.  J.  K.  B. 
N.  S.  1445,  111  L,  T.  N.  S.  736,  [1914]  W. 
N.  280,  137  L.  T.  Jo.  211,  7  B.  W.  C.  C. 
447. 

In  Perry  v.  Wright  [1908]  1  K.  B.  (Eng.) 
441,  1  B.  W.  C.  C.  351,  Cozens-Hardy,  M. 
R.,  said:  "Having  found  that  the  man  has 
a  particular  grade  and  what  are  the  aver- 
age wages  in  that  grade,  there  is  no  obliga- 
tion to  adopt  those  average  wages  as  the 
basis  of  compensation.  The  personal  ele- 
ment then  comes  in.  It  will  still  be  open 
to  consider  whether  the  individual  work- 
man is  an  average  man  or  is  above  or 
below  an  average  man.  This  must  be 
so  where  men  in  a  particular  grade  are 
employed  on  piecework.  You  cannot  re- 
ject evidence  of  the  skill  and  efficiency 
of  the  individual  workman.  Where  pay- 
ment is  at  so  much  per  hour  for  every 
man  in  a  particular  grade,  the  skill  and  ef- 
ficiency may,  perhaps,  be  disregarded,  though 
I  am  not  prepared  to  say  that  the  age  and 
the  habits  of  the  individual  may  not  have 
such  an  influence  upon  his  chance  of  em- 
ployment as  to  deserve  consideration." 

In  computing  the  average  weekly  earn- 
ings of  a  casual  laborer,  the  arbitrator  is 
not  merely  to  ascertain  the  amount  of  the 
average  weekly  earnings  of  men  employed 
in  the  same  class  of  work  as  the  applicant, 
but  regard  must  be  had  to  the  personal 
qualifications  of  the  injured  workman;  and 
L.R.A.1916A. 


if  his  actual  earnings  during  the  past  year 
or  any  other  evidence  showed  that  he  was 
in  fact  above  the  average,  that  must  be  re- 
garded. Snell  v.  Bristol  Corp.  [1914]  2  K. 

B.  (Eng.)  291,  83  L.  J.  K.  B.  N.  S.  353,  110 
L.  T.  N.  S.  563,  [1914]  W.  N.  47,  [1914]  W. 

C.  &  Ins.  Rep.  103,  7  B.  W.  C.  C.  236. 

98  Where  dock   laborers   were  divided   in- 
to three  classes  known  as  A  laborers  and  B 
laborers  and  extra  casual  laborers,  and  the 
A.  laborers  had  permanent  employment,  and 
the    B    laborers    secured    admission    tickets 
and  got  employment  after  the  A  laborers, 
and  the  extra  casual  laborers  had  a  chance 
for  work  after  the  B  laborers,  and  at  the 
same  rate  of  pay,  the  B  laborers  and  the 
extra   casual   laborers,   form   or  may   form 
separate  grades.    Barnett  v.  Port  of  London 
Authority    [1913]    2  K.  B.    (Eng.)    115,   82 
L.  J.  K.  B.  N.  S.  353,  108  L.  T.  N.  S.  277, 
29   Times  L.  R.  252,    (1913]   W.   C.  &  Ins. 
Rep.  250,  [1913]  W.  N.  35,  57  Sol.  Jo.  282, 
6  B.  W.  C.  C.  105. 

99  Where   a   workman   previously   injured 
had  returned  and  been  employed  at  "light 
work"  for  upwards  of  six  months,  the  earn- 
ings  for  that  period  only  are   to  be  con- 
sidered in  determining  his  average  weekly 
earnings,  and  the  question  of  the  existence 
of    other    workmen    "of    the    same    grade" 
does  not  arise.     Gough  v.  Crawshay   Bros. 
[1908]   1  K.  B.   (Eng.)  441,  77  L.  J.  K.  B. 
N.   S.   238,   98   L.   T.  N.   S.   327,   24   Times 
L.  R.  186,  1  B.  W.  C.  C.  374. 

1  Priestley    v.    Port    of    London    Author- 
ity   [1913]    2   K.   B.    (Eng.)    115,   82   L.   J. 
K.  B.  N.  S.  353,  108  L.  T.  N.  S.  277,  29 
Times  L.  R.  252,  57  Sol.  Jo.  282,  6  B.  W. 
C.  C.  105. 

2  Perry  v.  Wright  (Eng.)  supra. 

3  Price  v.  Marsden  [1899]  1  Q.  B.  (Eng.) 
493,  80  L.  T.  N.  S.  15,  68  L.  J.  Q.  B.  N.  S. 
307,  47  Week.  Rep.  274,  15  Times  L.  R.  184, 
holding   that   the  amount   of   compensation 
due  to  a  workman  who  had  been  employed 
by  the  same  employer  during  twelve  months 
before    the    accident    should    be    computed 
from  the  weekly  earnings  during  the  entire 
twelve   months,   although  the  character  of 
his  work  had,  within  that  period,  been  al- 
tered, and  his  wages  increased. 

*Babcock  v.  Young  [1911]  S.  C.  406,  48 
Scot.  L.  R.  298,  4  B.  W.  C.  C.  367  (workman 
served  as  boiler  maker  and  as  common  la- 
borer). 

Where  a  mill  girl  in  a  roperie,  because  of 
her  proficiency  in  her  work,  was  advanced 


152 


WORKMEN'S  COMPENSATION. 


regularly  employed  in  one  grade,  and  is 
temporarily  transferred  to  another  grade 
in  an  emergency,  the  wages  of  the  latter 
grade  do  not  determine  his  compensa- 
tion.5 

The  construction  and  meaning  of  the 
word  "grade"  as  used  in  schedule  1  (2) 
is  a  question  of  law.6 

3.  Concurrent   employments. 

The  provision  in  f  2  (b),  as  to  con- 
current contracts,  applies  only  to  cases 
where  it  is  necessary  to  compute  the 
average  weekly  earnings  of  the  work- 
man; consequently  earnings  under  a  con- 
current contract  are  to  be  disregarded 
where  compensation  is  sought  by  the 
dependents  of  a  workman  who  had 
worked  continuously  for  over  three  years 
for  the  same  employer.7 

This  provision  does  not  apply  where, 


although  money  is  earned  in  another 
way,  it  is  not  earned  under  contract  of 
employment.8  And  a  laborer  has  not 
concurrent  contracts  of  employment, 
where  he  only  takes  the  second  job  on 
which  the  contract  arises  after  the  first 
one  is  finished,  and  he  only  takes  a  later 
one  after  the  second  one  is  finished.9 
The  concurrent  contracts,  however,  need 
not  be  of  an  ejusdem  generis  character.10 

4.  Absences  from  icorJc. 

In  computing  the  average  weekly  earn- 
ings of  a  workman  who  had  been  in  the 
employment  for  a  full  year  or  more,  but 
who  was  unable  to  work  all  of  the  time 
because  the  employer  did  not  have  work 
for  him,  his  total  earnings  for  the  year 
are  to  be  divided  by  52,  and  not  by  that 
figure,  less  the  number  of  weeks  he  did 
not  work  for  this  reason.11  The  same 


to  a  machine  where  a  finer  grade  of  hemp 
was  handled,  and  her  wages  were  increased, 
such  a  change  is  a  change  in  the  grade  of 
her    employment;     and    although    she    had 
worked  in  that  grade  but  five  weeks  at  the 
time    of    her    injury,    her    compensation    is 
to  be  fixed  with  reference  to  the  wages  she 
was  earning  at  the  time  of  her  injury,  and 
not  with  reference  to  the  average  amount  i 
she  had  earned  during  the  year.     Dalgleish  ; 
v.  Edinburgh  Roperie  &  Sailcloth  Co.  [1913] 
S.  C.  1007,  50  Scot.  L.  R.  916,  6  B.  W.  C.  | 
C.  867. 

5  Where  a  sailor  had  for  some  time  been 
employed  in  different  capacities  and  at 
various  rates  of  wages  by  the  employer,  and 
at  the  time  of  his  accident  had  been  en- 
gaged three  days  temporarily  as  mate  in 
the  place  of  his  son,  who  had  been  injured, 
it  is  error  for  the  county  court  judge  to 
hold  that  the  man's  grade  at  the  time  of 
his  death  was  that  of  mate,  and  that  the 
determination  of  the  grade  was  a  question 
of  law  which  was  appealable.  Jury  v.  The 
Atlanta  [1912]  3  K.  B.  (Eng.)  366,  81  L. 
J.  K.  B.  N.  S.  1182,  107  L.  T.  N.  S.  366, 
28  Times  L.  R.  562,  56  Sol.  Jo.  703,  [1912] 
W.  N.  218,  5  B.  W.  C.  C.  681. 

Where  a  workman  who  was  employed 
as  a  casual  carter,  for  a  few  weeks  immedi- 
ately prior  to  his  death  had  been  emploj^ed 
by  the  same  employers  as  a  casual  teams- 
ter while  the  employers  were  on  the  look-  j 
out  for  a  regular  man,  the  defendents  were 
not  entitled  to  compensation  upon  the  basis 
of  his  wages  as  teamster,  which  were  high- 
er than  those  earned  as  cartman,  but  the 
total  amount  of  wages  earned  by  the  cart- 
man, both  as  carter  and  as  teamster,  were 
to  be  taken  into  consideration  in  calculat- 
ing the  "average  weekly  earnings."  Edge 
v.  Gorton  [1912]  3  K.  B.  (Eng.)  360,  81  L. 
J.  K.  B.  N.  S.  1185,  107  L.  T.  N.  S.  340, 
28  Times  L.  R.  566,  56  Sol.  Jo.  719,  [1912] 
W.  N.  217,  5  B.  W.  C.  C.  614. 

The  same  method  of  calculating  the 
average  weekly  earnings  was  approved  in 
Dobson  v.  British  Oil  &  Cake  Mills  (1912) 
L.R.A.1916A. 


106  L.  T.  N.   S.    (Eng.)    922,    [1912]   W.  C. 
Rep.  207,  5  B.  W.  C.  C.  405. 

6  Jury  v.  The  Atlanta   (Eng.)   supra. 

7  Buckley   v.   London   &   I.  Docks    (1909) 
127   L.  T.  Jo.    (Eng.)    521,  2  B.  W.   C.  C. 
327. 

8  An    employee    of    a    laundry    who    also 
gives    music    lessons    is    not    entitled    when 
injured   in   the   laundry   to   claim   anything 
for    the    money    earned    by    giving    music 
lessons  which  was  not  earned  under  a  con- 
tract  of   employment.     Simmons   v.   Heath 
Laundry  Co.   [1910]   1  K.  B.   (Eng.)   543,  79 
L.  J.  K.  B.  N.  S.  395,  102  L.  T.  N.  S.  210, 
26  Times  L.  R.  326,  54  Sol.  Jo.  392.  3  B.  W. 
C.  C.  200. 

9  The  county   court  judge   is  in   error  in 
finding  that  a  porter  on  a  wharf,  engaged 
by  different  shipping  companies  from  time 
to    time,    was    under    concurrent    contracts 
of    employment.      Cue    v.  •  Port    of    London 
Authority  [1914]  3  K.  B.  (Eng.)  892,  [1914] 
W.  N.  280,  137  L.  T.  Jo.  211,  83  L.  J.  K. 
B.   N.   S.   1445,   111   L.   T.  N.   S.   736,   7   B. 
W.  C.  C.  447. 

10  The  amount  earned  in  the  evening  at 
a  theater  by  a  workman  employed  during 
the   day   by   a   railroad   company   is   to   be 
taken  into  consideration  in  fixing  his  aver- 
age weekly  earning,  although  the  rules  of 
the  railroad  provided  that  all  persons  em- 
ployed by  the  company  must  devote  them- 
selves   exclusively   to   the   company's   serv- 
ice.    Lloyd  v.  Midland  R.  Co.   [1914]   2  K. 

B.  (Eng.)  53,  83  L.  J.  K.  B.  N.  S.  330,  110 
L.   T.   N.   S.   513,  30   Times   L.   R.   247,   58 
Sol.   Jo.  249,   [1914]   W.  N.  32,    [1914]   W. 

C.  &  Ins.  Rep.  108,  7  B.  W.  C.  C.  72. 

In  fixing  the  average  weekly  earnings  of 
a  stoker,  a  retainer  as  stoker  in  the  Royal 
Naval  Reserve  must  be  taken  into  account, 
as  well  as  his  wages.  The  Raphael  v. 
Brandy  [1911]  A.  C.  (Eng.)  413.  80  L.  J. 
K.  B.  N.  S.  1067,  105  L.  T.  N.  S.  116,  27 
Times  L.  R.  497,  55  Sol.  Jo.  579,  4  B.  W. 
C.  C.  307. 

11  In  calculating  the  average  weekly  earn- 
ings   consideration    must    be    given    to    the 


ABSENCES  FROM  WORK. 


153 


method  is  to  be  employed  in  case  of  reg- 
ularly recurring  holidays.12  Where,  how- 
ever, a  workman  voluntarily  takes  time 
off,  the  weeks  so  taken  off  are  to  be  sub- 
tracted from  the  total  number  of  weeks 
in  the  year,  before  dividing  the  total 
amount  earned  for  the  purpose  of  as- 
certaining the  average  weekly  earnings. 
In  such  a  case  the  divisor  is  not  52,  or 


the  number  of  weeks  in  the  year,  but 
the  number  weeks  he  could  have 
worked.13  A  different  conclusion  was  ap- 
parently reached  by  the  court  of  appeal 
in  the  case  arising  under  the  act  of 
1897.1* 

A  more  complex  problem  arises  where 
the  workman  has  not  been  employed  for 
a  full  year,  and  during  a  portion  of  the 


period  which  the  workman  had  not  worked 
because  the  employers  had  not  work  enough 
to  employ  him.  White  v.  Wiseman  [1912] 
3  K.  B.  '(Eng.)  352,  81  L.  J.  K.  B.  N.  S. 
1195,  107  L.  T.  N.  S.  277,  28  Times  L.  R. 
542,  56  Sol.  Jo.  703,  [1912]  W.  N.  216,  5 
B.  W.  C.  C.  654,  Ann.  Cas.  1913D,  1021. 

The  proper  method  of  computing  the 
average  weekly  earnings  of  a  workman 
who  has  not  worked  all  the  weeks  of  the 
year,  partly  because  there  was  no  work 
and  partly  because  he  voluntarily  took 
some  time  off,  is  to  divide  the  whole  amount 
earned  by  the  number  of  weeks  actually 
worked,  divide  the  result  by  52,  and  multi- 
ply the  quotient  by  the  number  of  weeks 
which  he  might  have  worked.  Anslow  v. 
Cannock  Chase  Colliery  Co.  [1909]  1  K.  B. 
(Eng.)  352,  78  L.  J.  K.  B.  N.  S.  154,  99  L. 
T.  N.  S.  901,  25  Times  L.  R.  167,  53  Sol. 
Jo.  132,  2  B.  W.  C.  C.  361,  affirmed  in 
[1909]  A.  C.  435,  78  L.  J.  K.  B.  N.  S.  679, 
100  L.  T.  N.  S.  786,  25  Times  L.  R.  570,  53 
Sol.  Jo.  519,  2  B.  W.  C.  C.  365. 

To  the  same  effect  is  a  Scotch  ruling  to 
the  effect  that,  in  computing  the  "average 
weekly  earnings"  of  a  laborer  who  had 
been  employed  for  a  varying  number  of 
hours  on  seventy-seven  stated  days  at  ir- 
regular intervals,  during  a  period  of  105 
weeks,  the  total  amount  of  the  earnings 
should  be  divided  by  the  whole  number  of 
weeks,  without  discarding  weeks  in  which 
there  had  been  no  employment.  Small  v. 
M'Cormick  (1899)  1  Sc.  Sess.  Cas.  5th  series, 
883,  36  Scot.  L.  R.  700,  7  Scot.  L.  T.  35. 

In  computing  the  average  weekly  earn- 
ings of  a  workman  who  had  been  employed 
for  over  a  year  in  the  same  trade  by  the 
employer,  a  period  of  time  during  which 
trade  was  slack  and  the  workman  was 
absent  from  his  work,  due  to  the  fluctua- 
tions of  the  trade,  is  not  to  be  excluded, 
although  such  slackness  was  due  somewhat 
to  the  conditions  of  war,  but  arose  inde- 
pendently of  the  war.  Griffiths  v.  Gilbert- 
son  [1915]  W.  N.  (Eng.)  253,  84  L.  J.  K. 
B.  N.  S.  1312.  Warrington,  L.  J.,  said  that 
fluctuation  of  trade,  even  if  caused  by  the 
war,  are  necessarily  incident  to  the  trade, 
and  are  not  abnormal  conditions  within  the 
meaning  of  schedule  1,  clause  2(c). 

12  In  Bailey  v.  Kenworthy  [1908]  1  K. 
B.  (Eng.)  441,  Cozens-Hardy,  M.  R.,  laid 
down  the  following  rule:  Where  a  work- 
man is  employed  by  the  piece,  and  there 
have  been  stoppages  of  work  during  the 
year,  owing  to  a  break  in  the  canal,  acci- 
dents to  machinery,  bank  holidays  and 
trade  holidays,  it  is  error  to  divide  the 
amount  earned  during  the  year  by  52  in 
L.R.A.1916A. 


order  to  arrive  at  the  average  weekly  earn- 
ings, but  that  the  amount  received  should 
be  divided  by  the  actual  number  of  weeks 
or  portions  of  weeks  during  which  the  work 
was  done,  as  it  was  not  the  workman's 
fault  that  the  stoppages  occurred.  But 
Fletcher  Moulton,  L.  J.,  held  that  stop- 
pages on  recognized  holidays  were  to  be 
regarded  as  times  when  the  employer  could 
not  be  called  upon  to  furnish  employment, 
and  the  amount  which  the  workman  might 
have  earned  during  such  period  was  to  be 
deducted.  He  said:  "I  will  assume,  for 
the  sake  of  clearness,  that  the  total  of  the 
stoppages  from  recognized  holidays  amount 
to  two  weeks,  and  that  the  remainder  of 
the  interruptions  from  accidents  and  other 
causes  amount  to  one  week.  It  appears  to 
me  that  the  right  method  of  proceeding  is 
to  say  that  the  sum  total  of  the  earnings, 
namely,  £83  2s.  Id.,  was  earned  by  forty- 
nine  weeks'  work,  and  the  average  per  week 
thus  obtained  will  give  the  average  wages 
earned  in  a  week  of  full  work.  But  there 
are  only  fifty  weeks  of  full  work  in  the 
year,  and  therefore  the  average  earnings 
in  a  week  would  be  less  than  the  figure  so 
obtained  by  one  twenty-sixth  part,  or  about 
4  per  cent.  In  other  words,  the  earnings  in 
a  week  of  full  work  are  to  that  extent 
higher  than  the  average  weekly  earnings  in 
the  employment,  because  there  is  incident 
to  it  an  enforced  idleness  of  two  weeks  in 
the  year.  The  week  during  which  the 
workman  was  absent  from  work  on  ac- 
count of  breakdown  in  the  works  stands  in 
a  different  position." 

It  is  apparent  that  the  amount  arrived 
at  by  Cozens-Hardy,  M.  R.,  would  exceed 
that  arrived  at  by  Fletcher  Moulton,  L.  J. 
Farwell,  L.  J.,  did  not  deliver  judgment. 
The  question  is  left  open  so  far  as  this 
case  is  concerned,  since  the  parties  subse- 
quently agreed  upon  the  amount  and  fur- 
ther proceedings  in  the  court  were  not  had. 
However,  in  the  subsequent  case  of  Anslow 
v.  Cannock  Chase  Colliery  Co.  [1909]  1  K. 
B.  (Eng.)  352,  78  L.  J.  K.  B.  N.  S.  154,  99 
L.  T.  N.  S.  901,  25  Times  L.  R.  167,  53  Sol. 
Jo.  132,  2  B.  W.  C.  C.  361,  Cozens-Hardy, 
M.  R.,  spoke  with  approval  of  the  judg- 
ment delivered  by  Fletcher  Moulton,  L.  J., 
and  said  that  there  was  no  difference  of 
opinion. 

13  Ibid.  (Eng.);  Perry  v.  Wright  [1908]  1 
K.  B.  (Eng.)  441,  77  L.  J.  K.  B.  N.  S.  236, 
98  L.  T.  N.  S.  327,  24  Times  L.  R.  186,  1  B. 
W.  C.  C.  351. 

1*  Keast  v.  Barrow  Haematite  Steel  C.n 
(1899)  15  Times  L.  R.  (Eng.)  141,  63  J.  P. 
56.  1  W.  C.  C.  99. 


154 


WORKMEN'S  COMPENSATION. 


period  of  employment  the  workman,  for 
some  reason,  did  not  work.  In  a  Scotch 
case  where  the  workman  had  been  em- 
ployed for  thirteen  weeks,  but  had  been 
absent  for  a  fortnight  because  of  illness, 
and  for  nearly  another  fortnight  because 
of  general  trade  holidays,  the  court  of 
session  held  that  the  arbitrator  was 
wrong  in  dividing  the  total  amount  earn- 
ed by  thirteen;18  such  a  holding  would 
amount  to  an  assumption  that  out  of 
every  thirteen  weeks  the  workman  would 
always  be  ill  for  two  weeks  and  there 
would  always  be  two  weeks  of  trade 
holidays.  The  case  is  not  very  satisfac- 
tory because  the  court  apparently  took 
the  view  that  the  question  was  one  of 
fact  for  the  arbitrator;  at  least,  the 
question  of  law  was  not  answered,  but 
remit  was  made  to  the  arbitrator  to  pro- 
ceed. The  following  principles  may, 
however,  be  fairly  drawn  from  the  lan- 
guage of  the  Lord  President:  Ordina- 
rily the  average  weekly  earnings  of  a 
workman  are  to  be  ascertained  by  divid- 
ing the  total  amount  earned  during  the 
relevant  period  of  his  employment  by  the 
number  of  weeks  actually  worked  with- 
in that  period,  and  if  there  are  regularly 
recurring  trade  holidays  when  no  work 
can  be  done,  by  deducting  from  the  re- 
sult above  obtained  a  fraction  equal  to 
the  fraction  of  the  year  during  which, 
for  this  reason,  no  wages  can  be  earned. 
Nothing  is  said  as  to  how  the  absences 


from  illness  were  to  be  treated,  but  it 
seems  plain  from  the  language  of  sched- 
ule 1,  f  2  (c),  that  nothing  should  be 
deducted  because  of  such  time. 

In  an  early  case  before  the  county 
court  judge,  it  was  held  that  where  a 
holiday  occurred  during  the  two  weeks 
in  which  the  employee  worked,  the  aver- 
age weekly  earnings  were  only  one  half 
of  what  he  actually  earned.16 

There  is  dicta  in  an  opinion  of  one  of 
the  judges  of  the  English  court  of  appeal 
that  the  average  weekly  earnings  of  a 
workman  are  not  affected  by  the  ques- 
tion whether  or  not  a  larger  or  smaller 
amount  of  enforced  stoppages  due  to 
trade  holidays  occurs  in  the  period  which 
furnishes  the  material  for  the  average.17 

Absence  from  work  because  of  some 
unavoidable  cause,  such  as  is  referred  to 
in  If  2  (c),  must  be  ejusdem  generis  with 
illness;  18  that  is,  it  must  be  a  cause 
personal  to  the  workman,  and  not  have 
to  do  with  the  work,  such  as  absences 
due  to  trade  holidays.19 

Absences  of  a  few  days  in  an  employ- 
ment lasting  for  one  and  one-half  years 
may  be  disregarded  in  the  case  of  a  work- 
man working  by  the  hour.20  Absence 
of  a  workman  from  work  because  of  a 
strike,  not  in  his  own  trade,  but  in  an 
allied  trade,  is  an  "unavoidable  cause," 
and  is  to  be  deducted  from  the  time 
when  the  workman  could  have  worked.21 
Absences  due  to  unavoidable  causes  are 


15  Carter  v.  Lang   [1908]    S.  C.   1198,  45 
Scot.  L.  R.  938,  1  B.  W.  C.  C.  379. 

16  Where    the    workman    had    been    em- 
ployed   for    two    full    weeks,    one-half    the 
amount   he   earned   during   those   weeks    is 
his  average  weekly  earnings,  although  one 
of  the  weeks  embraced  Christmas  day,  upon 
which  he  earned  nothing,  so  that  his  aver- 
age   weekly    earnings    for    the    two    weeks 
were  less  than  his  earnings  for  one  of  those 
weeks.       Faircloth     v.     Waring     &     Gillow 
(1906;  C.  C.)   8  W.  C.  C.   (Eng.)   99.     • 

17 In  Perry  v.  Wright  [1908]  1  K.  B.I 
(Eng.)  441,  1  B.  W.  C.  C.  351,  Fletcher) 
Moulton,  L.  J.,  said:  "For  instance,  two 
workmen  in  the  same  employment,  at  the 
same  wages  would,  in  my  opinion,  be  en- 
titled to  have  their  average  weekly  earn- 
ings estimated  at  the  same  figure,  even 
though  the  Wakes  Week  occurred  in  the 
period  during  which  the  one  had  been  in 
the  master's  employment,  and  did  not  so 
occur  in  the  case  of  the  other.  The  master 
would  be  entitled  to  have  regard  taken  to 
the  fact  that  the  average  weekly  earnings 
in  such  employ  were  somewhat  less  than 
the  £2  by  reason  of  the  fact  that  only 
fifty  weeks  were  worked  out  of  the  fifty- 
two  of  which  a  year  consists;  but  the 
rate  of  remuneration  so  arrived  at  must 
be  applied  equally  to  the  case  of  each  of 
the  two  workmen." 
L.R.A.1916A. 


18  (Eng.)    Ibid. 

19  Carter  v.  Lang  (Scot.)  supra. 

20  The   court    of   appeal    will    dismiss    an 
appeal  from  an  award  of  the  county  court 
judge,  who,  in  estimating  the  compensation 
to  be  paid  to  the  dependent  of  a  workman 
who  has  been   paid  by  the  hour,  took  the 
odd  days  at  the  beginning  and  at  the  end 
of  the  employment  as  full  two  weeks,  and 
made  no  reduction  for  two  periods  of  four 
days   during  which   the   workman   was   ab- 
sent because  of  illness;  the  court  said  that 
they  could  not  estimate  the  amount  which 
he  would  have  earned  during  the  two  peri- 
ods   in    which    he    was    absent    because    of 
illness,    and   that   the   error    in   taking   the 
odd  days  as  two  full  weeks  was  too  trivial 
to  be  the  subject  of  an  appeal.     Turner  v. 
Port  of  London  Authority   [1913]   W.  C.  & 
Ins.  Rep.   (Eng.)    123,  29  Times  L.  R.  204, 
6  B.  W.  C.  C.  23. 

21  In  computing  the  average  weekly  earn- 
ings of  a  workman  who  had  been  employed 
by  an  employer  for  upwards  of  one  year  at 
the  same  trade,  a  week  during  which  the 
workman   was    absent    from   his    work   due 
to  a  strike,  not  in  his  own  trade,  but  an- 
other  trade  with   which  his  trade  was  re- 
lated,   should    be    excluded.      Griffiths    v. 
Gilbertson  [1915]  W.  N.  (Eng.)   253,  84  L. 
J.  K.  B.  N.  S.  1312. 


PERIOD  OF  EMPLOYMENT. 


155 


cot  to  be  regarded  where  the  employment 
has  been  continuous  with  the  same  em- 
ployer for  three  years,  and  the  compen- 
sation is  sought  by  his  dependents.22 

6.  Period  of  employment  forming  basis 
for  computation  of  average  weekly 
earnings. 

In  case  of  the  death  of  the  workman,  j 
the  compensation  recoverable  by  the  de- 
pendents is  based  upon  the  earnings  for 
the  previous  three-year  period;  but  in 
case  of  injury  not  resulting  in  death,  the 
workman's  compensation  is  based  upon 
his  wages  for  the  period  of  one  year 
preceding  the  accident.23  Where  a  work- 
man has  been  employed  continuously  by 
the  same  employer  for  upwards  of  three 
years,  neither  the  provision  relative  to 
the  concurrent  employments  nor  the  one 
relative  to  absences  due  to  illness  is  ap- 
plicable, but  the  compensation  is  limited 
to  the  amount  of  wages  actually  received 
by  the  employee.24  And  in  the  case  of 
an  injured  workman,  only  the  last  twelve 
months  of  the  employment  can  be  taken 
into  consideration,  although  the  condi- 
tions as  to  earnings  had  considerably 
changed  during  that  period.25 

A  workman  need  not  be  in  the  employ- 
ment for  two  weeks  in  order  to  recover 
compensation.  The  English  court  of  ap- 
peal had  laid  down  the  rule  that  in  order 
to  obtain  the  benefit  of  the  act  a  work- 
man must  have  been,  for  at  least  two 
weeks,  in  the  employment  of  the  employ- 


er in  whose  service  he  has  sustained  the 
injury  for  which  he  seeks  compensation.26 
But  the  decisions  cited  were  reversed  by 
the  House  of  Lords,27  and  the  correct 
doctrine  was  declared  to  be  that  the 
right  to  compensation  given  by  $  1  of 
the  act  is  not  restricted  by  schedule  I. 
to  employments  by  the  week,  or  for  week- 
ly wages,  or  for  two  weeks  at  least,  and 
that  employment  by  the  day  for  one  or 
more  days  is  within  the  act.  It  was  re- 
marked that  the  word  "average"  in  the 
expression  "average  weekly  earnings"  is 
used  loosely  and  inaccurately  in  the 
schedule,  and  that  the  words  in  section 
1  "in  accordance  with  the  first  schedule 
to  this  act"  are  not  intended  to  limit  or 
restrict  the  right  of  the  workman  to  re- 
ceive compensation,  or  the  obligation  up- 
on the  employer  to  pay  it,  but  denote 
the  manner  and  mode  in  which  the  pay- 
ment is  to  be  carried  into  effect.  The 
effect  of  this  decision  is  that  the  right 
to  compensation  does  not  depend  on  the 
length  of  service,  but  merely  on  the  fact 
that  the  workman  was  injured  while  in 
the  employment  of  the  "undertaker" 
through  an  accident  arising  out  of  the 
employment.28  Compensation  is  recover- 
able although  the  workman  had  not  been 
in  the  employment  long  enough  to  be 
entitled  to  any  wages.29 

There  is  a  conflict  between  the  English 
and  Scotch  courts  with  regard  to  the 
effect  of  the  decision  of  the  House  of 
Lords  upon  the  rights  of  a  servant  who  is 


22  Where  a  workman  had  been  in  the  em- 
ployment of  the  same  employer  for  up- 
wards of  three  years,  and  had  been  in  the 
same  grade  of  employment  during  that 
time,  his  dependents  are  entitled  to  com- 
pensation to  the  amount  of  his  wages  for 
three  years  preceding  the  accident  resulting 
in  his  death,  where  that  sum  is  between 
£150  and  £300,  and  absence  due  to  the  ill- 
ness of  the  workman  is  to  be  disregarded. 
Greenwood  v.  Hall  [1915]  W.  N.  (Eng.) 
1244,  31  Times  L.  R.  476,  59  Sol.  Jo.  577. 

28  Perry  v.  Wright  [1908]  1  K.  B.  (Eng.) 
441,  77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N. 
S.  327,  24  Times  L.  R.  186,  1  B.  W.  C.  C. 
351. 

24  Buckley  v.  London  &  I.  Docks  (1909) 
127  L.  T.  Jo.  (Eng.)  521,  2  B.  W.  C.  C.  327; 
Greenwood  v.  Hall  [1915]  W.  N.  (Eng.)  244, 
31  Times  L.  R.  476,  59  Sol.  Jo.  577. 

26  Where  the  workman  had  been  employed 
by  the  same  employer  for  many  years,  but 
during  the  last  twelve  months  previous  to 
the  accident  he  had,  owing  to  slackness  of 
work,  been  employed  much  less  than  the 
full  number  of  hours  per  week,  the  com- 
pensation was  awarded  on  the  basis  of  the 
average  weekly  earnings  for  the  last  twelve 
months  only.  Kelly  v.  York  Street  Flax 
Spinning  Co.  (1909;  C.  C.)  43  Ir.  L.  T.  Jo. 
81,  2  B.  W.  C.  C.  493. 
L.R.A.1916A. 


26Lysons  v.  Knowles  [1900]  1  Q.  B. 
(Eng.)  780,  69  L.  J.  Q.  B.  N.  S.  449,  64  J. 
P.  292,  48  Week.  Rep.  408,  82  L.  T.  N.  S. 
189,  16  Times  L.  R.  250;  Stuart  v.  Nixon 
[1900]  2  Q.  B.  (Eng.)  95,  82  L.  T.  N.  S. 
489,  69  L.  J.  Q.  B.  N.  S.  598,  48  Week. 
Rep.  598,  16  Times  L.  R.  335. 

27  [1901]  A.  C.  (Eng.)  79,  70  L.  J.  Q.  B. 
N.  S.  170,  65  J.  P.  388,  49  Week.  Rep.  636, 
84  L.  T.  N.  S.  65,  17  Times  L.  R.  156. 

28  There  is  a  sufficient  basis  for  comput- 
ing the   "average   weekly   earnings,"   where 
a    servant    worked    on    the    Friday    in    one 
week,  and  then  during  the  following  week 
until  Thursday,  when  the  accident  occurred. 
Cadzow  Coal  Co.  v.  Gaffney    (1900)    3   Sc. 
Sess.  Cas.  5th  series,  72,  38  Scot.  L.  R.  40, 
8  Scot.  L.  T.  224. 

And  where  the  servant  was  injured  on 
the  fifth  day  of  his  second  week  of  work. 
Russell  v.  McCluskey  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  1312,  37  Scot.  L.  R.  931, 
8  Scot.  L.  T.  172. 

29  Leonard   v.    Baird    (1901)    3    Sc.    Sess. 
Cas.  5th  series.  890,  38  Scot.  L.  R.  649,  9 
Scot.  L.  T.  83,  holding  that  in  a  case  where 
a  servant  was  killed  so  soon  after  the  em- 
ployment that  no  right  to  any  wages  had 
accrued  at  the  time  of  his  death,  a  depend- 
ent  was  entitled  to  recover  £150. 


156 


WORKMEN'S  COMPENSATION. 


working  under  a  weekly  contract.  The 
court  of  appeal  has  taken  the  position 
that  where  such  a  servant  had  worked 
less  than  two  weeks  before  the  accident, 
the  average  earnings  are  to  be  arrived 
at  by  taking  the  actual  facts,  and  deduc- 
ing therefrom  a  hypothetical  sum  which 
represents  what  the  workman  would 
have  earned  if  he  had  had  the  opportu- 
nity of  performing  his  duties  during  two 
complete  weeks.  The  actual  sum  earned 
in  a  given  fraction  of  a  week  is  not  treat- 
ed as  the  week's  earnings.30 

In  Scotland,  on  the  other  hand,  it  has 
been  held  that  the  proper  construction 
of  the  decision  of  the  House  of  Lords  is 
that  the  actual  earnings  for  a  part  of  a 
week,  if  the  period  of  work  has  been  no 
longer,  are  to  be  taken  as  the  earnings 
with  reference  to  which  the  compensa- 
tion is  to  be  assessed.31  Where  death 
ultimately  resulted  from  injuries  re- 
ceived during  the  workman's  first  week 
of  employment,  but  he  had  continued  to 
work  during  a  second  week,  it  was  held 
that  the  earnings  of  the  second  week 
might  be  taken  into  account  in  calculat- 
ing the  amount  recoverable.32  But  where 
a  workman,  after  working  one  week,  is 
injured  so  soon  after  the  beginning  of 
the  following  week  that  no  right  to  any 
wages  had  then  accrued,  the  sum  earned 


in  the  first  week  represents  his  average- 
weekly  earnings.83 

In   cases   of   casual    and  intermittent 

employment,  the  average  weekly  earnings 

are  arrived  'at  by  taking  the  total  amount 

i  earned,  and  dividing  that   sum  by  the 

!  number  of  weeks  during  which  the  em- 

i  ployment  lasted.84 

..  '  . 
G.   Trade  or  calendar  u-eelcs. 

In  an  English  case,  where  a  servant 
worked  for  six  consecutive  days,  begin- 
ning on  Wednesday  and  ending  on  the 
following  Tuesday,  the  work  being  done 
under  a  daily  engagement,  no  notice  on 
either  side  being  necessary  to  terminate 
the  connection,  but  where  it  was  also 
shown  that  there  was  a  custom  in  the 
trade  to  pay  weekly  wages,  it  was  held 
that  compensation  was  properly  award- 
ed on  the  footing  that  the  sum  earned 
during  the  six  days  represented  his  aver- 
age weekly  earnings.  The  court  consid- 
ered that  it  was  immaterial,  for  the  pur- 
poses of  the  computation,  that  the  trade 
week  of  the  employer  ended  on  the 
Thursday  night,  and  negatived  the  con- 
tention of  the  employer  that,  for  this 
reason,  the  average  weekly  earnings  were 
half  of  the  amount  actually  received.35 
In  another  case,  it  is  said  that  the  num- 
ber of  weeks  constituting  the  divisor  of 


SOAyres  v.  Buckeridge  [1902]  1  K.  B. 
(Eng.)  57,  71  L.  J.  K.  B.  N.  S.  28,  65  J.  P. 
804,  50  Week.  Rep.  115,  85  L.  T.  N.  S.  472, 
18  Times  L.  R.  20. 

This  decision  apparently  overrules  Peers 
v.  Astley  &  T.  Collieries  Co.  (1901;  C.  C.) 
3  W.  C.  C.  (Eng.)  185,  in  which  it  was  held 
that  where  a  workman  had  worked  for  less 
than  a  week,  the  amount  actually  earned 
is  to  be  taken  as  the  average  weekly  earn- 
ings. 

Where  a  workman  had  worked  part  of  a 
week  only,  his  compensation  is  to  be  fixed 
with  regard  to  what  he  would  have  earned 
had  he  worked  for  the  entire  week.  Greaves 
v.  Mulliners  (1901;  C.  C.)  3  W.  C.  C.  (Eng.) 
189. 

Where  a  meat  porter  secured  work  at  the 
dock  as  a  strike  breaker,  being  taken  on  as 
an  extra  casual  laborer,  and  was  employed 
for  twelve  continuous  days  before  his  acci- 
dent, and  there  was  every  probability  that, 
but  for  his  accident,  he  would  have  been 
continuously  employed  until  the  end  of  the 
strike,  which  lasted  for  five  weeks  after 
che  accident,  the  county  court  judge  is 
justified  in  taking  the  amount  he  earned 
for  the  first  completed  week  as  his  average 
weekly  earning.  Barnett  v.  Port  of  Lon- 
don Authority  [1913]  2  K.  B.  (Eng.)  115, 
82  L.  J.  K.  B.  N.  S.  353,  108  L.  T.  N.  S. 
277,  29  Times  L.  R.  252  [1913]  W.  C.  & 
Ins.  Rep.  250  [1913]  W.  N.  35,  57  Sol.  Jo. 
282,  6  B.  W.  C.  C.  105. 

3lMcCue  v.  Barclay  (1902)  4  Sc.  Sess. 
L.U.A.1916A. 


Cas.  5th  series,  909,  39  Scot.  L.  R.  690,  10 
Scot.  L.  T.  116;  Grewar  v.  Caledonian  R. 
Co.  (1902)  4  Sc.  Sess.  Cas.  5th  series,  895, 
39  Scot.  L.  R.  687,  10  Scot.  L.  T.  111. 

32  Doyle  v.  Beattie  (1900)  2  Sc.  Sess.  Cas. 
5th  series,  1166,  37  Scot.  L.  R.  915,  8  Scot. 
L.  T.  131. 

33  Nelson  v.  Kerr   (1901)   3  Sc.  Sess.  Cas. 
5th  series,  893,  38  Scot.  L.  R.  645,  9  Scot. 
L.  T.  83. 

In  Brown  v.  Cunningham  (1904)  6  Sc. 
Sess.  Cas.  5th  series  (Scot.)  997,  it  was 
held  that  where  a  workman  was  engaged 
for  a  fixed  weekly  wage,  entered  upon  his 
work  on  a  Saturday,  and  worked  for  the 
whole  of  the  following  calendar  week,  at 
the  end  of  which  his  employment  was  termi- 
nated by  his  employers  in  consequence  of 
an  injury  resulting  in  total  incapacity,  he 
was  entitled  to  compensation,  and  that  the 
fixed  weekly  wage  was  the  basis  for  de- 
termining the  amount  of  the  weekly  pay- 
ment. The  Lord  Justice  Clerk  said:  "I 
am  satisfied  that  where  there  is  a  fixed  con- 
tract, and  it  is  fulfilled  over  a  full  week,, 
the  earnings  so  made  by  contract  form 
the  true  basis  for  ascertaining  the  rights 
as  to  compensation.  This  is,  I  think,  con- 
sistent with  the  view  expressed  in  the 
House  of  Lords  in  the  case  of  Lysons."  See 
note  26,  supra. 

34  Williams   v.  Poulson    (1899)    16  Times 
L.  R.   (Eng.)   42,  63  J.  P.  757. 

35Watters  v.  Clover  (1901)  18  Times  L. 
R.  (Eng.)  60. 


CONTINUITY  OF  EMPLOYMENT. 


157 


the  total  earnings  is  not  the  number  of 
weeks  from  the  pay  day,  hut  the  number 
of  weeks  from  the  first  day  of  employ- 
ment.36 But  another  view  prevails  in 
Scotland,  where  it  has  been  held  that  the 
week  to  be  taken  as  the  unit  of  division 
is  not  the  calendar  week,  but  the  trade 
or  pay  week  of  the  particular  employ- 
ment.37 If  there  is  no  trade  week,  the 
•calendar  week  from  Sunday  to  Saturday 
is  to  be  taken  as  the  week  with  reference 
to  which  the  average  earnings  are  to  be 
estimated.38 

7.  Continuity    of    the    employment. 

The  words  "period  of  his  actual  em- 
ployment under  the  said  employer,"  as 
used  in  paragraph  1  (a)  (i),  are  con- 
strued as  denoting  the  period  of  con- 
tinuous employment  immediately  preced- 
ing the  accident;  and  that  period  alone 


i  is  to  be  taken  into  account  in  computing 
|  the    amount    of    compensation    recover- 
able.39    Any  separate  and  distinct  pe- 
!  riods  during  which  the  servant  may  pre- 
i  viously  have  worked  are  not  to  be  taken 
i  into   consideration.40     But  a   temporary 
cessation  of  work   does  not   necessarily 
break  the  continuity  of  the  employment 
in  such  a  manner  as  to  exclude  from  the 
computation  the  period  anterior  to  that 
cessation.41  Continuous  employment  may 
I  be  found  to  exist  where,  for  a  period  of 
upwards   of   ten   months,   the   applicant 
worked  for  the  employer  during  a  por- 
tion of  each  Aveek,  except  for  four  weeks, 
when  he  did  not  work,  for  some  reasons 
not  appearing.42 

To  enable  a  court  to  say  that  "a  series 
of  short  periods  [of  work]  should  be 
taken  together  and  treated  as  a  continu- 
ous term,  there  must  be  some  nexus  to 


36  Turner    v.   Port    of   London    Authority 
(1913)  29  Times  L.  R.   (Eng.)   204,  6  B.  W. 
C.  C.  23. 

37  Fleming  v.  Lochgelly  Iron   &  Coal  Co. 
(1902)   4  Sc.  Sess.  Cas.  5th  series,  890,  39 
Scot.  L.  R.  684,  10  Scot.  L.  T.  114.     The 
facts  were  that  the  claimant  had  been  em- 
ployed   for    three    days    in    one    week,    and 
during  the  whole   of  the  next   two  weeks, 
and   on    the    Sunday    of    the    fourth    week. 
It  was  held  that,  in  estimating  his  average 
weekly   earnings,   the   total   amount   of  his 
earnings  must  be  divided  by  the  number  of 
calendar  weeks,  i.  e.,   four,  over  which   his 
employment  extended.     The  court  explained 
that  the  special  point  thus  ruled  upon  had 
not  been  raised  in  an  earlier  case,  in  which 
the  system  of  computation  followed  was  the 
same  as  in  the  English  case  just  cited.   Pea- 
cock v.  Niddric  &  B.  Coal  Co.   (1902)   4  Sc. 
Sess.   Cas.   5th   series,  443,   39   Scot.   L.   R. 
317,  9  Scot.  L.  T.  379. 

In  Campbell  v.  Fife  Coal  Co.  (1902)  5 
Sc.  Sess.  Cas.  5th  series,  170,  40  Scot.  L.  R. 
143,  10  Scot.  L.  T.  410,  the  decision  in  the 
Fleming  Case  was  followed. 

SSMcCue  v.  Barclay  (1902)  4  Sc.  Sess. 
Cas.  5th  series,  909,  39  Scot.  L.  R.  690.  10 
Scot.  L.  T.  116. 

39Appleby  v.  Horseley  Co.  [1899]  2  Q. 
B.  (Eng.)  521,  80  L.  T.  N.  S.  853,  68  L.  J. 
Q.  B.  N.  S.  892,  47  Week.  Rep.  614;  Roth- 
well  v.  Davies  (1903)  19  Times  L.  R.  (Eng.) 
423. 

A  workman  who  had  been  employed  from 
time  to  time  as  his  labor  was  required,  and 
who  had  worked  continuously  from  the  llth 
to  the  28th  of  November,  upon  which  latter 
day  he  was  injured,  but  had  not  worked 
from  the  second  to  the  10th  of  that  month, 
is  entitled  to  compensation  calculated  with 
reference  to  his  weekly  earnings  during 
the  period  of  continuous  employment.  Giles 
v.  Belford  [1903]  1  K.  B.  (Eng.)  843,  72 
L.  J.  K.  B.  N.  S.  569,  51  Week.  Rep.  692, 
88  L,  T.  N.  S.  754,  67  J.  P.  399,  19  Times 
L.  R.  422. 

Where  a  workman  had  been  working  for 
L.R.A.1916A. 


the  employer  for  more  than  a  year,  when  he 
left  and  went  to  Canada  and  was  em- 
ployed at  a  much  higher  wage,  and  returned 
to  England  for  the  purpose  of  removing 
his  family  to  Canada,  and  while  there 
temporarily  returned  to  his  old  employment 
and  worked  for  nine  weeks  at  an  average 
wage  considerably  lower  than  that  which 
he  received  during  the  previous  employ- 
ment, the  county  court  judge  has  juris- 
diction to  compute  the  rate  of  remunera- 
tion from  the  period  of  the  nine  weeks 
during  the  time  which  the  workman  had 
been  employed  since  his  return  from  Can- 
ada, and  was  entitled  to  take  into  con- 
sideration the  workman's  intention  to  leave 
the  country;  and  the  facts  that  the  wages 
would  have  been  higher  at  another  period 
of  the  year,  and  that  he  had  been  hindered 
by  the  weather,  were  immaterial.  Godden 
v.  Cowlin  [1913]  1  K.  B.  (Eng.)  590,  82 
L.  J.  K.  B.  N.  S.  509,  108  L.  T.  N.  S.  166, 
29  Times  L.  R.  255,  57  Sol.  Jo.  282,  [1913] 
W.  N.  37,  [1913]  W.  C.  &  Ins.  Rep.  330,  6 
B.  W.  C.  C.  154. 

40Grewar  v.  Caledonian  R.  Co.  (1902)  4 
Sc.  Sess.  Cas.  5th  series,  895,  39  Scot.  L.  R. 
687,  10  Scot.  L.  T.  111. 

*l  There  is  no  break  in  the  workman's 
employment  where  he  goes  away  on  a  holi- 
day. Keast  v.  Barrow  Haematite  Steel  Co. 
(1899)  15  Times  L.  R.  (Eng.)  141,  63  J.  P. 
56,  1  W.  C.  C.  99. 

In  Jones  v.  Ocean  Coal  Co.  [1899]  2  Q. 
B.  (Eng.)  124,  68  L.  J.  Q.  B.  N.  S.  731,  47 
Week.  Rep.  484,  80  L.  T.  N.  S.  582,  15 
Times  L.  R.  339,  while  it  was  declared  that, 
while  the  average  of  the  weekly  earnings 
should  not  be  reduced  by  taking  into  ac- 
count a  part  of  the  year  during  which  the 
relation  of  master  and  servant  did  not  ex- 
ist, a  different  rule  was  applicable  where 
the  relation  continued,  and  the  men  did 
not  work  simply  because  there  was  nothing 
for  them  to  do. 

42  Williams  v.  Poulson  (1899)  16  Times 
L.  R.  (Eng.)  42,  63  J.  P.  757,  2  W.  C.  C. 
126. 


158 


WORKMEN'S  COMPENSATION. 


join  them.  There  must  be  some  contract, 
express  or  implied,  which  raises  a  rea- 
sonable expectation  of  continuity  in  the 
employment.  In  the  absence  of  that  nex- 
us, casual  engagements  on  noncontract 
days  do  not  constitute  one  continuous 
employment,  for  they  are  not  bound  to- 
gether." 43  To  bring  about  that  conse- 
quence there  must  have  been  an  actual 
interruption  for  the  time  being  of  the 
relation  of  master  and  servant.  Whether 
there  has  been  such  an  interruption  is 
to  be  determined  from  the  evidence,  as 
a  question  of  fact.44 

S.  Deductions. 

In  one  case  the  court  of  appeal  ap- 


proved of  the  course  followed  by  an  ar- 
bitrator, who  disregarded  a  weekly 
deduction  from  the  workman's  wages 
which,  under  the  employer's  rules,  was 
made  on  account  of  lamp  oil  supplied  to- 
him,  and  took  the  full  amount  of  his 
weekly  wages  as  the  basis  of  the  award.46 
This  course  has  been  approved  by  the 
House  of  Lords.46  In  another  case  the 
court  of  appeal  intimated  its  opinion,  but 
did  not  expressly  decide,  that  the  value 
of  the  tuition  given  to  an  apprentice 
should  not  be  taken  into  account  in  com- 
puting the  amount  of  his  "average  week- 
ly earnings."47  In  another  case  it  was 
held  by  the  Scotch  court  of  sessions  that, 
in  estimating  the  average  earnings  of  a 


43  Collins,   L.   J.,   in   Hathaway  v.   Argus 
Printing    Co.    [1901]    1    K.    B.    (Eng.)    96. 
There  a  workman  was  under  an  agreement 
to  work  for  his  employers  on  the  nights  of 
Thursday  and  Friday  in  each  week,  for  a 
period  extending  over  two  weeks,  and  at  a 
fixed  rate  of  wages  for  each  night.     During 
the  rest  of  the  week  he  worked,  at  times, 
for    the    same    employers,    when    they    had 
work  to  give  him,  and  at  other  times   for 
other  firms  carrying  on  a  similar  business 
to  that   of  the   employers.     The   workman 
was   injured  during  the  third   week   of  his 
employment   under   the   agreement,  and   an 
award  was  made  in  his  favor,  based  on  the 
weekly  wages  earned  by  him  in  respect  of 
the    two   nights    a    week    during   which    he 
worked  under  the  agreement.     On  appeal  it 
was  held   (1)  that  the  employment  for  two 
nights  a  week   was  a  continuous  one,  and 
that  the  earnings  of  those  two  nights  were 
properly  taken  into  account  in  determining 
the    weekly    payment    to   be    made    to    the 
applicant;     (2)    that    the    amount    received 
for  casual  work  done  for  the  same  or  dif- 
ferent  employers   could  not  be   taken   into 
account   in   estimating  the  average   weekly 
earnings  of  the  applicant. 

44  A  workman  was  in  the  employment  of 
the   defendants   as   a   riveter   at   a   weekly 
wage  of  £2,  10s.,  from  the  27th  of  Septem- 
ber, 1895,  to  the  16th  of  March,  1896,  when 
he   was   injured   by   an   accident    which   in- 
capacitated him  for  eleven  months,  during 
which  time  he  did  not  work,  and  earned  no 
wages.     In  February,  1897,  the  defendants 
employed  him  as  a  time  keeper  at  a  weekly 
wage  of  £1,  10s.,  and  he  continued  in  such 
employment   until   the   27th   of   September. 
1898,   when  he  was   killed  by   an   accident. 
Held,   that   for   the   purpose   of  calculating 
the  compensation  payable,  the  period  of  tho 
workman's   employment  by  the   defendants 
had   been   less   than   three  years,   and   that 
his    "average    weekly    earnings"    must    be 
calculated  with  reference  only  to  the  period 
between  the   time   when   he   resumed   work 
and    the    date    of    his    death.      Appleby    v. 
Horseley  Co.  [1899]  2  Q.  B.   (Eng.)   521,  68 
L.  J.  Q.  B.  N.  S.  892,  80  L.  T.  N.  S.  853, 
47  Week.  Rep.  614,  15  Times  L.  R.  410. 

A  finding  that  the  employment  was  not 
L.R.A.1916A. 


j  continuous  was  held  justifiable  in  a  case 
'  where  the  workman  had  been  absent  eleven 
weeks  on  account  of  sickness,  although 
when  he  resumed  work  no  fresh  engage- 
ment was  entered  into.  Hewlett  v.  Hep- 
burn (1899)  16  Times  L.  R.  (Eng.)  56. 

A  period  of  six  weeks  during  which  the 
servant  was  disabled  from  work,  owing  to  a 
previous  accident,  constitutes  a  break  in 
the  employment,  and  any  compensation  that 
may  be  due  for  a  second  injury  received 
after  resuming  work  must  be  ascertained 
with  reference  to  the  period  which  had 
elapsed  between  the  resumption  of  work 
and  the  occurrence  of  the  second  accident,, 
upon  which  the  claim  is  based.  Gibb  v. 
Dunlop  (1902)  4  Sc.  Sess.  Cas.  5th  series, 
971,  39  Scot.  L.  R.  750,  10  Scot.  L.  T.  184. 
Such  portion  of  the  period  of  one  year 
preceding  the  injury  as  occurred  prior  to  a 
strike  during  which  the  injured  workman 
was  not  employed,  and  after  the  termina- 
tion of  which  he  re-entered  the  employ- 
ment under  a  new  agreement,  is  not  to  be 
considered.  Jones  v.  Ocean  Coal  Co.  [1899] 
2  Q.  B.  (Eng.)  124,  68  L.  J.  Q.  B.  N.  S.  731r 
47  Week.  Rep.  484,  80  L.  T.  N.  S.  582,  15 
Times  L.  R.  339. 

45Houghton  v.  Sutton  Health  &  L.  G. 
Collieries  Co.  [1901]  1  K.  B.  (Eng.)  93,  83 
L.  T.  N.  S.  472,  70  L.  J.  Q.  B.  N.  S.  61,  65 
J.  P.  134,  49  Week.  Rep.  196,  17  Times  L. 
R.  54. 

46  In  estimating  the  compensation  pay- 
able to  an  injured  servant  under  the  work- 
men's compensation  act  1897,  the  word 
"earnings"  in  the  act  means  the  sum  the 
workman  receives  for  his  labor  when  he 
comes  to  it  properly  equipped  according  to 
the  general  understanding  and  practice  in 
the  particular  trade.  Abram  Coal  Co.  v. 
Southern  [1903]  A.  C.  (Eng.)  306,  72  L.  J. 
K.  B.  N.  S.  691,  89  L.  T.  N.  S.  103,  19  Times. 
L.  R.  579.  It  was  accordingly  held  that  the 
earnings  of  a  collier  from  whose  weekly 
wages  were  deducted  by  agreement  sums 
for  cleaning  lamps,  supply  of  oil,  sharpen- 
ing wicks,  and  checking  weights,  were  his 
full  wages  without  the  deductions.  The 
decision  of  the  court  of  appeal  in  the 
Houghton  Case  was  approved. 
47p0mphrey  v.  Southwark  Press  [1901] 


REMUNERATION  OTHER  THAN  REGULAR  WAGES. 


159 


servant  who  was  paid  according  to  his 
output,  nothing  is  to  be  deducted  in  re- 
spect to  the  value  of  the  services  of  his 
son,  whom  he  employed  as  an  assistant, 
without  paying  him  anything.48  But  the 
wages  of  a  "drawer"  or  assistant,  which 
were,  in  accordance  with  custom,  includ- 
ed in  the  remuneration  given  the  miner, 
are  to  be  deducted.49  The  cost  of  ex- 
plosives used  by  a  miner,  although  pro- 
cured from  the  employer,  who  deducts 
the  cost  thereof  from  the  miner's  wages, 
is  not  to  be  deducted  in  estimating  the 
average  weekly  earnings  of  the  miner.50 
But  the  English  court  of  appeal  has  held 
that  the  cost  of  powder  furnished  a  gang 
of  miners  is  to  be  considered  and  de- 
ducted where  the  gang  was  paid  for  the 
amount  of  sand  and  stone  gotten  out, 
and  the  amount  earned,  less  the  cost  of 
the  powder,  was  given  to  the  head  of 
the  gang,  who  gave  to  each  miner  his 
aliquot  part.  This  case,  however,  was 
distinguished  in  various  ways  by  the 
judges  delivering  judgment.61 

Under  the  act  of  1897  it  was  held  by 

1  K.  B.  (Eng.)  86,  83  L.  T.~N.  S.  468,  70 
L.  J.  Q.  B.  N.  S.  48,  65  J.  P.  148,  17  Times 
L.  R.  53. 

«  Nelson  v.  Kerr  (1901)  3  Sc.  Sess.  Cas. 
5th  series,  893,  38  Scot.  L.  R.  645,  9  Scot. 
L.  T.  83. 

»M'Kee  v.  Stein  [1910]  S.  C.  38,  47 
Scot.  L.  R.  39,  3  B.  W.  C.  C.  544. 

50  Where  a  miner  was  in  the  habit  of 
purchasing  the  explosives  which  he  required 
for  his  work  from  his  employers,  and  the 
price  of  these  was  retained  by  them  from 
his  wages,  the  cost  of  explosives  does  not 
represent  a  sum  paid  to  the  miner  "to 
cover  any  special  expenses."  (Scot.)  Ibid. 

61  Shipp  v.  Frodingham  Iron  &  Steel  Co. 
[1913]  1  K.  B.  (Eng.)  577,  82  L.  J.  K.  B. 
N.  S.  273,  108  L.  T.  N.  S.  55,  29  Times  L. 
R.  215,  57  Sol.  Jo.  264  [1913]  W.  N.  16, 
[1913]  W.  C.  &  Ins.  Rep.  230,  6  B.  W.  C.  C. 
1,  Ann.  Cas.  1914C,  183.  Cozens-Hardy,  M. 
R.,  said  that  there  was  a  contract  to  pay 
the  workman  only  his  aliquot  share  of  the 
net  earnings;  that  is,  the  gross  earnings 
of  the  gang,  less  the  value  of  the  powder. 
Buckley,  L.  J.,  said  that  each  man  was 
not  paid  according  to  the  amount  which  he 
individually  got  out,  and  was  not  charged 
with  the  amount  of  powder  which  he  used. 
Hamilton,  L.  J.,  said  that  the  wages  were 
fixed  only  after  the  powder  had  been  de- 
ducted. 

52  Midland  R.  Co.  v.  Sharpe  [1904]  A.  C. 
(Eng.)  349,  73  L.  J.  K.  B.  N.  S.  666,  91  L. 
T.  N.  S.  181,  20  Times  L.  R.  546,  53  Week. 
Rep.  114.  Against  the  contention  that  it 
was  the  amount  of  "profits"  which  a  work- 
man made  which  was  to  be  considered  in 
fixing  the  compensation,  Lord  Davey  said 
that  it  was  the  actual  amount  of  his  re- 
muneration that  was  to  be  looked  to,  and 
there  was  not  to  be  taken  into  account  the 
L.R.A.1916A. 


the  House  of  Lords  that  allowances  for 
expenses  for  board  and  lodging  while 
the  workman  was  away  from  home  con- 
stituted part  of  his  earnings.62  But  this 
decision  is  no  longer  authority,  in  view 
of  the  express  provision  of  schedule  1, 
1f  2  (d),  of  the  act  of  1906. 

9.  Remuneration    other    than    regular 
wages. 

"Earnings  in  the  employment"  do  not 
always  come  from  the  employer.88  So, 
where  the  giving  and  receiving  "tips" 
are  notorious,  the  money  thus  received 
is  to  be  included  in  fhe  "average  weekly 
earnings."  64  The  "average  weekly  earn- 
ings" do  not  include  weekly  payments  by 
way  of  compensation  for  a  previous  ac- 
cident,56 nor  an  amount  received  from  the 
poor  fund.66 

In  determining  the  average  weekly 
earnings  of  a  seaman  who  is  paid  a  cer- 
tain sum  per  week,  and  his  board  and 
lodgings  on  a  ship,  the  cost  to  the  em- 
ployer of  the  food  and  a  reasonable  al- 
lowance for  the  lodging  has  been  taken 

expenses  which  he  had  to  incur  in  putting 
himself  in  a  position  to  earn  the  money. 

53Penn  v.  Spiers  [1908]  1  K.  B.  (Eng.) 
766,  77  L.  J.  K.  B.  N.  S.  542,  98  L.  T.  N.  S. 
541,  24  Times  L.  R.  354,  52  Sol.  Jo.  280,  1 
B.  W.  C.  C.  401,  14  Ann.  Cas.  335. 

54  (Eng.)  Ibid. 

The  county  court  judge  in  calculating  the 
average  weekly  earnings  of  an  employee 
may  take  into  consideration  tips  obtained 
by  the  workman,  although  they  were  given 
for  services  outside  the  regular  employ- 
ment. Knott  v.  Tingle  Jacobs  &  Co.  (1911) 
4  B.  W.  C.  C.  (Eng.)  55. 

In  Hains  v.  Corbet  (1912)  5  B.  W.  C.  C. 
(Eng.)  372,  the  court  of  appeal  held  that 
the  finding  of  the  county  court  judge  as  to 
the  amount  of  wages  which  a  workman 
was  receiving  at  the  time  of  the  injury  was 
conclusive,  although  the  county  court  judge 
had  admittedly  made  an  error  in  refusing  to 
take  into  consideration  tips  and  commis- 
sions earned  by  the  workman,  so  that  the 
workman  was  not  entitled  to  compensation 
upon  resuming  work,  where  his  wages  were 
higher  than  what  the  county  court  judge 
had  in  the  first  instance  found  them  to  be, 
although  such  wages  were  not  as  large  as 
his  prior  wages,  and  the  tips  together  were. 

55Qough  v.  Crawshay  Bros.  [1908]  1  K. 
B.  (Eng.)  441,  77  L.  J.  K.  B.  N.  S.  236,  98 
L.  T.  N.  S.  327,  24  Times  L.  R.  186,  1  B. 
W.  C.  C.  374. 

56  The  amount  of  the  poor  relief  paid  to 
a  workman  employed  by  a  distress  com- 
mittee under  the  unemployed  workman  act 
1905  is  not  to  be  taken  into  account  in 
calculating  the  amount  of  the  compensation 
payable  by  the  distress  committee.  Gilroy 
v.  Mackie  [1909]  S.  C.  466,  46  Scot.  L.  R. 
325. 


160 


WORKMEN'S  COMPENSATION. 


as  the  value  to  the  workman.57  But  in 
another  case  in  the  same  court  it  was 
said  that  the  true  test  was  the  actual 
value  to  the  workman  of  the  board  furn- 
ished by  the  employer.88 

The  steward  of  a  vessel  is  entitled  to 
have  a  monthly  bonus  received  from  his 
employers  when  satisfied  with  his  work, 
and  the  profits  which  he  makes  on  the 
sale  of  whisky  at  the  bar  of  the  vessel, 
taken  into  consideration  in  fixing  his 
average  earnings.59  The  right  to  use  a 
uniform,  which  remains  the  property  of 
the  employer,  must  be  treated  as  part  of 
the  workman's  earnings.60 

/.  Medical   examination   of  injured 
workman   (JJ  4,  14,  15)  . 

The  first  schedule  provides  that  the 
employer  may  require  the  workman  to 
submit  to  a  medical  examination  under 
two  different  situations.  First,  by  ^f  4, 
when  he  has  given  notice  of  an  accident 
and  thereby  asserts  a  claim  to  compensa- 
tion; second,  by  f  14,  where  he  has  been 
receiving  compensation.  These  sections 
do  not  overlap,  as  they  deal  with  differ- 
ent states  of  facts.61  Paragraph  15 
covers  tne  practice  in  either  case.  Upon 
the  refusal  of  the  workman  to  be  medi- 
cally examined,  the  county  court  judge 
is  authorized  to  suspend  proceedings 
pending  examination,  provided  he  finds 
the  refusal  to  be  unreasonable.62 

The  court  of  appeal  laid  down  the  rule 
that  1  4  applied  in  every  case  in  which 
the  workman's  right  to  compensation  had 
not  been  fixed  by  an  agreement  or  by  an 
award  of  an  arbitrator.63  But  the  House 
of  Lords  held  that  f  4  applies  in  every 
case  in  which  compensation  was  not  act- 
ually being  paid  at  the  time  of  the  ap- 
plication, although  such  payments  had 


been  made,  but  had  been  discontinued.64 
In  each  of  these  decisions  it  was  held 
that  it  applies  to  a  case  where  the  em- 
ployers had  been  voluntarily  paying  full 
compensation,  had  terminated  such  pay- 
ment, and  the  workman  then  commenced 
proceedings.  The  House  of  Lords  furth- 
er held  that  under  \  4,  the  right  to  re- 
quire the  workman,  who  has  given  notice 
of  an  accident,  to  submit  to  an  examina- 
tion, is  not  confined  to  a  single  examina- 
tion.65 The  mere  fact  that  an  employer 
has  made  no  objection  to  the  commence- 
!  ment  of  proceedings,  on  the  ground  that 
I  no  notice  of  the  accident  was  given  by 
the  workman,  does  not  warrant  the  in- 
ference of  a  waiver  by  the  employer  of 
his  right  to  compel  the  workman  to  sub- 
mit to  a  medical  examination,  nor  justify 
the  arbitrator  in  imposing  terms  upon 
the  employer,  as  a  condition  of  his  ob- 
taining an  order  that  the  workman  shall 
be  examined.66 

The  view  has  been  taken  by  the  court 
of  appeal  that  the  words  "receiving 
weekly  payments,"  as  used  in  f  14,  mean 
not  only  payments  to  a  man  who,  up  to 
the  moment  of  his  refusal,  was  getting 
week  by  week  the  money  paid  into  his 
hands,  but  also  to  a  man  who,  whether 
receiving  it  in  money  or  not,  is  entitled 
to  receive  it  under  some  enforceable 
right.67  The  House  of  Lords  subsequent- 
ly, however,  laid  down  the  rule  that  \  14 
does  not  apply  in  a  case  in  which  pay- 
ments were  not  being  made  at  the  time 
of  the  request  for  an  examination,  wheth- 
er payments  had  formerly  been  made 
or  not,  and  whether  or  not  there  was 
any  award  or  agreement  as  to  such  pay- 
ment.68 

Under  the  act  of  1897,  a  workman 
who  while  receiving  compensation  sub- 


5?Rosenqvist  v.  Bowring  [1908]  2  K.  B. 
(Eng.)  108,  77  L.  J.  K.  B.  N.  S.  545,  98  L. 
T.  N.  S.  773,  24  Times  L.  R.  504. 

SSDothie  v.  MacAndrew  &  Co.  [1908]  1 
K.  B.  (Eng.)  803,  77  L.  J.  K.  B.  N.  S.  388, 
98  L.  T.  N.  S.  495,  24  Times  L.  R.  326. 

59  Skailes    v.    Blue    Anchor    Line    [1910] 
W.  N.  267,  27  Times  L.  R.  119,  55  Sol.  Jo. 
107. 

60  Great     Northern     R.     Co.     v.     Dawson 
[1905]   1  K.  B.   (Eng.)   331,  74  L.  J.  K.  B. 
N.  S.  271,  53  Week.  Rep.  309,  92  L.  T.  N. 
S.  145,  21  Times  L.  R.  193. 

61  Major  v.  South  Kirkby,  F.  &  H.  Collier- 
ies [1913]  2  K.  B.   (Eng.)   145,  82  L.  J.  K. 

B.  N.  S.  452,  108  L.  T.  N.  S.  538,  29  Times 
L.  R.   223,  57  Sol.   Jo.  244,   [1913]   W.  N. 
17,  [1913]  W.  C.  &  Ins.  Rep.  305,  6  B.  W. 

C.  C.  169,  Ann.  Cas.  1914C,  81. 
62Longhurst  v.   The  Clement   [1913]   W. 

C.  &  Ins.  Rep.    (Eng.)    312,  6  B.  W.  C.  C. 
218. 

83  Major  v.  South  Kirkby,  F.  &  H.  Collier- 
L.R.A.1916A. 


ies,  and  Longhurst  v.  The  Clement   (Eng.) 
supra. 

64  Smith   v.   Davis    [1915]    A.   C.    (Eng.) 
528,  31  Times  L.  R.  356,  [1915]  W.  N.  152, 
59  Sol.  Jo.  397. 

65  The  county  court  judge  is  justified  in 
making  an   order  suspending  a  workman's 
right  to  compensation  where  he  refused  to 
submit  to  a  medical  examination  under  ^|  4 
of  the  first  schedule,  at  the  time  when  he 
took   proceedings   to   enforce  his  claim   for 
compensation,  although  he  had  submitted  to 
an  examination  at  the  time  of  making  his 
claim,     about     three     months     previously. 
Smith  v.  Davis    (Eng.)   supra. 

660sborn  v.  Vickers  [1900]  2  Q.  B.  (Eng.) 
91,  69  L.  J.  Q.  B.  N.  S.  606,  82  L.  T.  N.  S. 
491,  16  Times  L.  R.  333. 

67  Hamilton,    L.    J.,    in    Major    v.    South 
Kirkby,  F.  &  H.  Collieries  (Eng.)  supra. 

68  Smith    v.    Davis    (Eng.)    supra.      Lord 
Loreburn,  L.  C.,  said:      "I  cannot  see  why 
they   are  not   applicable   to   the   case   of   a 


MEDICAL  EXAMINATION. 


161 


mits  to  an  examination  by  a  medical 
practitioner  provided  by  the  employer 
need  not  submit  to  an  examination  by 
one  of  the  referees  appointed  under  the 
second  schedule  of  the  act,  but  may  file 
a  request  for  arbitration  upon  the  em- 
ployer's discontinuing  the  compensa- 
tion.69 The  provision  of  the  act  under 
which  these  cases  arose  (a  portion  of  f 
11)  was  omitted  from  the  corresponding 
paragraph  (14)  of  the  act  of  1906. 

The  workman  is  not  entitled  as  a  mat- 
ter of  right  to  have  his  own  doctor  pres- 
ent at  the  examination.70  Whether  or 
not  he  is  so  entitled  is  a  question  of  fact 
to  be  determined  by  the  arbitrator.71  It 
is  a  refusal  to  submit  to  an  examination 
where  the  workman  refuses  to  be  exam- 
ined except  at  his  solicitor's  office  or 
in  his  presence.72  A  workman  does  not 
necessarily  obstruct  a  medical  examina- 
tion, within  the  meaning  of  the  act,  by 
going  into  another  country  and  refusing 
to  return  for  an  examination  unless  his 


expenses  are  paid.78  So,  a  workman  who 
is  receiving  compensation  does  not  ob- 
struct the  holding  of  a  medical  examina- 
tion within  If  14,  schedule  I.  of  the  act 
by  enlisting  and  going  with  his  regi- 
ment to  India,  since  he  was  acting  under 
military  orders,  and  was  not  intending 
to  reside  permanently  outside  of  the 
United  Kingdom.74  But  an  injured 
workman  who  is  in  receipt  of  weekly 
payments  and  who  goes  to  Australia 
without  intimating  to  his  employers 
that  he  is  going,  or  without  leaving  his 
address,  obstructs  the  medical  examina- 
tion in  the  sense  of  these  paragraphs  of 
the  first  schedule.75  As  to  the  effect  of 
refusal  to  have  an  operation  performed, 
see  notes  26  et  seq.  ante,  139. 

The  report  of  a  medical  practitioner 
appointed  for  the  purpose  of  the  act  is 
conclusive  upon  the  question  whether  the 
incapacity  arising  from  the  injury  has 
ceased.76  And  the  county  court  judge 
is  justified  in  following  the  report  of 


man  who  is  receiving  weekly  payments  by  1059,  101  L.  T.  N.  S.  299,  it  was  held  that 
oral  agreement  just  as  much  as  if  a  memo-  a  workman  did  not  refuse  to  be  examined, 
randum  had  been  recorded,  or  as  if  the  sums  j  in  telling  a  medical  man  sent  by  the  em- 


were  payable  under  an  award.  The  pur- 
pose seems  to  me  to  be  exactly  what  the 
words  say.  If  the  employer  for  any  reason 
does  not  make  the  weekly  payment,  he 
has  no  right  to  have  a  medical  examination 
under  these  provisions,  and  he  and  the  work- 
man are  left  to  their  rights  without  the 
obligation  on  the  workman  of  submitting 
to  the  examination  imposed  by  these  pro- 
visions. If,  on  the  other  hand,  the  work- 
man is  receiving  weekly  payments  under  the 
act,  it  does  not  signify  whether  there  is  a 
memorandum  or  an  award  or  an  unrecorded 
agreement,  provided  that  the  man  is  in  fact 
being  paid  in  respect  of  the  rights  conferred 
upon  him  by  the  act.  It  would  be  different 
if  the  money  were  being  paid  as  an  act  of 
mere  charity  or  benevolence,  for  in  that 
case  no  part  of  the  act  has  any  application." 
69Niddrie  &  B.  Coal  Co.  v.  McKay  (1903) 
5  Sc.  Sess.  Cas.  5th  series,  1121,  40  Scot. 
L.  R.  798,  11  Scot.  L.  T.  275;  Neagle  v. 
Nixon's  Nav.  Co.  [1904]  1  K.  B.  (Eng.) 
339,  73  L.  J.  K.  B.  N.  S.  165,  68  J.  P. 
297,  52  Week.  Rep.  356,  90  L.  T.  N.  S.  49, 
20  Times  L.  R.  160;  Strannigan  v.  Baird 
(1904)  6  Sc.  Sess.  Cas.  5th  series,  784,  41 
Scot.  L.  R.  609,  12  Scot.  L.  T.  152.  Davidson 
v.  Summerlee  &  M.  Iron  &  Steel  Co.  (1903) 
5  Sc.  Sess.  Cas.  5th  series,  991,  40  Scot.  L.  R. 
764,  11  Scot.  L.  T.  269,  was  disapproved  in 
the  other  two  Scotch  cases  which  were  de- 
cided in  the  other  division  of  the  court. 

70  Morgan  v.  Dixon   [1912]   A.  C.    (Eng.) 
74,  81  L.  J.  P.  C.  N.  S.  57,  105  L.  T.  N.  S. 
678,  28  Times  L.  R.  64,  56  Sol.  Jo.  88,  [1912] 
S.  C.  (H.  L.)  1,  49  Scot.  L.  R.  45,  5  B.  W. 
C.  C.  184,  [1911]  W.  N.  220,  [1912]  W.  C. 
Rep.  43. 

71  In  Devitt  v.  The  Bainbridge   [1909]   2 


ployers  to  examine  him,  that  he  did  not  ob- 
ject to  a  physical  examination,  provided  his 
own  physician  was  present. 

There  is  no  refusal  to  submit,  under 
sched.  I.,  fl  14,  where  the  workman  offers  to 
submit  to  an  examination  at  the  surgery  of 
his  doctor.  Harding  v.  Royal  Mail  Steam 
Packet  Co.  (1911)  4  B.  W.  C.  C.  (Eng.)  59. 
The  court  held  that  the  workman's  request 
was  not  unreasonable. 

72  Warby  v.  Plaistowe  (1910)  4  B.  W.  C. 
C.    (Eng.)    67.     Cozens-Hardy,  M.   R.,   said 
that   a    solicitor's   office   is   not,   under   or- 
dinary   circumstances,    a    proper    place    at 
which  to  hold  a  medical  examination  of  a 
workman. 

73  Where   a   workman   receiving   compen- 
sation fixed  by  agreement,  who  had  twice 
submitted    himself    for    examination    by    a 
medical   practitioner   provided   by   the   em- 
ployers, and  been  certified  not  to  have  re- 
covered,  immediately  after  the  second  ex- 
amination went  to  Ireland  to  reside  with 
his  father,  by  refusing  another  examination 
unless    his    expenses   were    paid,    where   he 
offered  to  submit  himself  for  examination  to 
a  medical  man  near  the  place  where  he  was 
residing,  did  not  refuse  to  submit  himself 
to    medical    examination,    or    obstruct    the 
same,  in  the  sense  of  the  workmen's  com- 
pensation act  1897,  sched.  L,  §  11.    Baird  v. 
Kane    (1905)    7    Sc.    Sess.    Cas.    5th    series 
(Scot.)    461. 

74  Harrison  v.  Dowling   (1915)    31  Times 
L.  R.  (Eng.)  486. 

75  Finnic  v.  Duncan  (1904)  7  Sc.  Sess.  Cas. 
5th  series  (Scot.)  254. 

78Ferrier  v.  Gourlay  Bros.  (1902)  4  Sc. 
Sess.  Cas.  5th  series,  711,  39  Scot.  L.  R.  453, 
9  Scot.  L.  T.  517;  McAvan  v.  Boase  Spin- 


Is:.    B.    (Eng.)    802,   78   L.  J.   K.   B.   N.  S.    ning  Co.  (1901)  3  Sc.  Sess.  Cas.  5th  series, 
L.R.A.1916A.  11 


162 


WORKMEN'S  COMPENSATION. 


the  medical  referee.77  Although  the 
medical  report  is  final,  so  far  as  it  re- 
lates to  the  physical  capacity  of  the 
workman,  it  may  be  in  such  form  as 
to  entitle  him  to  proof  as  to  his  wage- 
earning  capacity.7*  But  the  rule  is  dif- 
ferent where  the  report  of  the  medical 
referee  covers  both  the  physical  capac- 
ity and  the  wage-earning  ability  of  the 
workman.79  When  the  report  of  the  ref- 
eree is  unintelligible,  the  arbitrator  may 
send  back  the  report  for  an  explanation 
as  to  its  meaning.80 

g.  Payments  to  dependents    (JJ  5—7)  . 

It  is  the  dependents  of  the  deceased 
workman,  and  not  his  personal  repre- 
sentative, who  is  entitled  to  the  compen- 
sation money.  Thus  it  has  been  held 
that  the  portion  of  compensation  which 
had  been  apportioned  to  the  widow  of 
a  workman  who  also  left  dependent 
children,  which  portion  had  not  been 
disposed  of  at  the  death  of  a  widow, 
does  not  belong  to  the  personal  repre- 
sentative, but  to  the  other  dependents, 
who  are  entitled  to  have  a  reapportion- 
ment.81  So,  where  an  application  for 


compensation  is  made  by  the  legal  per- 
sonal representative  of  a  deceased  work- 
man, on  behalf  of  himself  and  other  de- 
pendents of  the  workman,  the  county 
court  judge  or  other  arbitrator  has  juris- 
diction to  order  so  much  of  the  compen- 
sation as  is  allotted  to  the  dependents,  to 
be  paid  to  the  county  court  registrar  for 
investment  in  his  name  on  their  behalf, 
and  is  not  compelled  to  order  it  to  be 
paid  to  the  legal  personal  representa- 
tive.82 

Where  neither  the  employer  nor  the 
wife  nor  the  daughter  of  the  deceased 
workman  was  before  the  court,  no  order 
will  be  made  by  the  court  on  the  applica- 
tion of  the  medical  resident  superintend- 
ent of  the  insane  asylum,  of  which  the 
wife  had  been  an  inmate  for  many  years,, 
to  have  apportioned  between  the  wife 
and  daughter  the  sum  which  had  been 
agreed  upon  as  compensation  for  the 
workman's  death.83 

The  arbitrator  must  allot  the  compen- 
sation money  among  the  dependents  in 
such  portion  as  he  thinks  right;  and  he 
has  no  power,  where  there  are  minor  de- 
pendents, to  direct  the  payment  of  the 


1048,  38  Scot.  L.  R.  772,  9  Scot.  L.  T.  152; 
Arnott  v.  Fife  Coal  Co.  [1911]  S.  C.  1029, 
48  Scot.  L.  R.  828,  4  B.  W.  C.  C.  361. 

The  report  of  the  medical  referee,  so  far 
as  it  relates  to  the  physical  capacity  of  the 
workmen,  is  final.  Cruden  v.  Wemyss  Coal 
Co.  [1913]  S.  C.  534,  50  Scot.  L.  R.  344, 
[1913]  W.  C.  &  Ins.  Rep.  188,  6  B.  W.  C. 
C.  393. 

A  certificate  of  a  medical  referee,  procured 
in  accordance  with  sched.  I.,  fl  15,  that  a 
workman  is  fit  to  work,  is  conclusive.  Sap- 
cote  v.  Hancock  (1911)  4  B.  W.  C.  C.  (Eng.) 
184. 

The  certificate  of  the  statutory  medical 
officer  must  be  accepted  by  the  trial  judge  as 
conclusive  evidence  of  the  .workman's  con- 
dition as  of  the  time  when  it  is  given. 
Bryce  v.  Connor  (1904)  7  Sc.  Sess.  Gas. 
5th  series  (Scot.)  193. 

77  Parry    v.    Rhymney    Iron    &    Coal    Co. 
(1912)  5  B.  W.  C.  C.  (Eng.)  632. 

78  Where  a  medical  referee  has  reported 
that  a  miner  who  has  lost  an  eye  is  as  fit 
to  work  underground  as  any  one-eyed  man 
is,  the  miner  is  entitled  to  a  proof  of  his 
earning  capacity.     Arnott  v.  Fife  Coal  Co. 
[1911]    S.   C.    1029,   48   Scot.   L.   R.   828,   4 
B.  W.  C.  C.  361. 

Upon  a  subsequent  appeal  [1912]  S.  C. 
1262,  49  Scot.  L.  R.  902,  6  B.  W,  C.  C.  281, 
it  was  held  that  proof  that  the  miner  had 
done  no  work  under  ground  since  the  acci- 
dent, and  had  made  various  unsuccessful 
applications  for  work;  that  it  was  impossi- 
ble to  say  whether,  if  he  had  returned  to 
work  underground,  he  would  have  regained 
his  former  earning  capacity;  that  the  earn- 
ing capacitv  of  a  one-eyed  miner  must  be 
L.R.A.1916A. 


judged  on  each  individual  case;  that  his 
weekly  salary  was  reduced  more  than  50 
per  cent  after  the  accident;  and  that  it  was- 
not  proved  by  the  employers  that  if  the 
miner  had  been  working  underground  he 
would  have  been  earning  more  than  he  was 
above  ground, — justifies  the  dismissal  of  the 
employer's  application  for  a  review  of  the 
compensation. 

To  the  same  general  effect,  Cruden  v. 
Wemyss  Coal  Co.  (Scot.)  supra,  which  was 
also  the  case  of  a  one-eyed  miner. 

79  Where  the  fitness  of  an  injured  miner 
had  been  referred  to  a  medical  referee  un- 
der schedule  I.  (15),  and  the  medical  referee- 
said  that  the  man  was  in  good  health  and 
quite   fit   to   resume   his   employment   as   a 
coal  miner,  having  recovered  from  the  acci- 
dent, it  is  not  error  for  the  arbitrator  to- 
end  the  compensation,  and  refuse  to  admit 
evidence  to  show  that  the  workman's  earn- 
ing ability  had  been  reduced,  notwithstand- 
ing the  fact  that  he  had,   from  a  medical 
point  of  view,  recovered  from  the  accident. 
Gray  v.  Shotts  Iron  Co.  [1912]  S.  C.  1267, 
49  Scot.  L.  R.  906,  6  B.  W.  C.  C.  287. 

80  Kennedy  v.  Dixon  [1913]  W.  C.  &  Ins. 
Rep.  333,   [1913]   S.  C.  659,  50  Scot.  L.  R. 
453.  6  B.  W.  C.  C.  434. 

Sllvey  v.  Ivey  [1912]  2  K.  B.  (Eng.)  118, 
81  L.  L.  K.  B.  N.  S.  819,  106  L.  T.  N.  S. 
485,  5  B.  W.  C.  C.  279. 

82  Daniel  v.  Ocean  Coal  Co.  [1900]  2  Q.  B. 
(Eng.)  250,  82  L.  T.  N.  S.  523,  69  L.  J. 
Q.  B.  N.  S.  567,  64  J.  P.  436,  48  Week.  Rep. 
467,  16  Times  L.  R.  368,  2  W.  C.  C.  135. 

83Kerr  v.  Stewart  (1909)  43  IT.  L.  T.  119,, 
2  B.  W.  C.  C.  454. 


REVIEW  OF  WEEKLY  PAYMENTS. 


163 


compensation  to  trustees,  to  be  invested 
or  otherwise  applied  by  such  trustees 
for  the  benefit  of  the  dependents,  in  such 
manner  as  the  trustees  may,  from  time 
to  time,  deem  expedient.84  The  arbitra- 
tor has  no  power  to  make  an  award  so  as 
to  exclude  any  dependents  who  are  not 
sui  juris,  and  capable  of  renouncing  their 
rights  under  the  act.85  When  the  total 
amount  of  compensation  has  been  agreed 
upon,  the  employer  is  not  to  be  brought 
in  to  settle  the  quantum  which  is  to  be 
paid  to  any  one  of  the  persons  who  are 
dependents  of  the  deceased  workman.86 
Arbitration  is  not  necessary  merely  to 
distribute  among  the  dependents  of  a  de- 
ceased workman  the  compensation  which 
the  employers  admit  is  due;  it  should  be 
brought  to  the  county  court  and  lodged 
to  their  credit.87  And  the  employers 
have  no  right  to  insist  that  the  depend- 
ents take  out  letters  of  administration 
as  a  condition  precedent  to  their  paying 
compensation.88 

ft.  Determination   of   question  \v~ho   are 
dependents    (J  S)  . 

It  is  the  duty  of  the  arbitrator,  in  de- 
termining the  question  whether  the 
claimant  was  a  dependent,  to  decide  in- 
cidentally her  relationship  to  the  de- 
ceased.89 

i.  Varying  of  the  award    (J  9)  . 

Where  the  arbitrator,  upon  the  death 
of  a  workman,  awarded  a  certain  com- 
pensation to  his  widow  and  four  chil- 
dren in  certain  proportions,  and  the 


widow  subsequently  died,  the  circum- 
stances are  varied  so  that  the  arbitrators 
have  power  to  vary  the  award  under  f 
9  or  schedule  I.90  So  upon  the  death  of 
a  workman,  as  the  result  of  his  injury,  a 
new  award  may  be  made  in  behalf  of  the 
dependent,  although  an  award  had  been 
previously  made  in  behalf  of  the  work- 
man himself.91 

j.  Review  of  meekly  payments   (J  16). 

The  review  provided  for  by  schedule 
I.  (16),  is  not  a  review  in  the  nature  of 
an  appeal  from  the  award  made  in  the 
first  instance  by  the  arbitrator,  but  a  re- 
view directed  to  the  question  whether, 
owing  to  changed  conditions,  these  week- 
ly payments  should  be  increased,  dimin- 
ished, or  made  to  cease.92 

Where  the  workman  or  employer  is  de- 
sirous of  having  the  amount  of  payment 
changed,  the  method  of  procedure  is 
prescribed  in  \  16  of  the  first  sched- 
ule. It  has  been  said  that  the  act  does 
not  grant  a  life  annuity  in  the  form  of 
weekly  payments  to  an  injured  work- 
man.93 But  it  is  proper  that  an  award 
should  be  made  in  such  form  that  it  will 
continue  payments  until  one  of  the  par- 
tics  shall  come  in  and  show  that  the  orig- 
inal award  should  be  changed.  So,  an 
award  of  compensation  "to  continue  dur- 
ing the  total  or  partial  incapacity"  of 
the  workman  is  not  ultra  vires  in  that 
it  attempts  to  give  at  the  same  time  com- 
pensation for  both  the  ascertained  total 
incapacity  and  the  unascertained  future 
partial  incapacity.94 


8*  Manchester  v.  Carlton  Iron  Co.  (1904) 
68  J.  P.  (Eng.)  209,  52  Week.  Rep.  291,  89 
L.  T.  N.  S.  730,  20  Times  L.  R.  155,  6  W. 
C.  C.  135. 

85  (Eng.)   Ibid. 

86  Rhodes  v.  Soothill  Wood  Colliery  Co. 
[1909]   1  K.  B.   (Eng.)   191,  78  L.  J.  K.  B. 
N.  S.  141,  100  L.  T.  N.  S.  15,  [1908]  W.  N. 
252    2  B    W    C    C    377 

87Harland  v.  Radcliffe  (1909)  43  Ir.  L. 
T.  166,  2  B.  W.  C.  C.  374. 

88  Clatworthy  v.  Green  (1902)  86  L.  T.  N. 
S.  (Eng.)  702,  66  J.  P.  596,  50  Week.  Rep. 
610,  18  Times  L.  R.  641,  4  W.  C.  C.  152. 

Brown  v.  London  &  N.  W.  R.  Co.  (1899; 
C.  C.)  1  W.  C.  C.  (Eng.)  147,  in  which  it  was 
held  that  if  the  workman  was  killed,  let- 
ters of  administration  must  be  taken  out, 
has  in  effect  been  overruled  by  the  court  of 
appeal  in  Clatworthy  v.  Green. 

89  Johnstone  v.  Spencer  [1908]  S.  C.  1015, 
45  Scot.  L.  R.  802,  1  B.  W.  C.  C.  302.    This 
was  the  case  of  an  illegitimate  child. 

But  see  Wallace  v.  Fife  Coal  Co.  [1909] 
S.  C.  (Scot.)  682,  where  opinions  were  re- 
served on  the  question  whether  it  was  com- 
petent for  the  arbitrator  in  the  arbitration 
proceedings  to  determine  whether  the  claim - 
L.R.A.1916A. 


ant  was  the  widow  of  the  deceased  work- 
man, and  Johnstone  v.  Spencer  (Scot.) 
supra,  was  distinguished. 

90  Ivey  v.  Ivey  [1912]  2  K.  B.  (Eng.)  118, 
81  L.  J.  K.  B.  N.  S.  819,  106  L.  T.  N.  S.  485, 
5  B.  W.  C.  C.  279. 

9lO'Keefe  v.  Lovatt  (1902)  18  Times  L. 
R.  (Eng.)  57,  4  W.  C.  C.  109. 

92  Gibson  v.  Wishart  (1914;  H.  L.  Sc.) 
30  Times  L.  R.  540,  [1914]  W.  N.  232,  5& 
Sol.  Jo.  592,  51  Scot.  L.  R.  516,  83  L.  J. 
P.  C.  N.  S.  321,  111  L.  T.  N.  S.  466,  [1914] 
S.  C.  (H.  L.)  53,  [1914]  W.  C.  &  Ins.  Rep. 
202,  7  B.  W.  C.  C.  348. 

98  Gray  v.  Reed  [1913]  W.  C.  &  Ins.  Rep> 
(Eng.)  127,  108  L.  T.  N.  S.  53,  6  B.  W. 
C.  C.  43. 

94Higgins  v.  Poulson  [1912]  2  K.  R 
(Eng.)  292,  81  L.  J.  K.  B.  N.  S.  690,  106 
L.  T.  N.  S.  518,  28  Times  L.  R.  323,  [1912] 
W.  N.  90,  [1912]  W.  C.  Rep.  244,  5  B.  W. 
C.  C.  340.  Buckley,  L.  J.,  said:  "The  whole 
contest  is  really  this,  whether  the  form 
of  the  order  is  to  throw  on  the  workman 
the  task  of  coming  from  time  to  time  to 
show  that  under  altered  circumstances  he 
is  entitled  to  such  a  sum,  or  whether  it 
is  to  continue  the  payments  until  one  of 


164 


WORKMEN'S  COMPENSATION. 


A  workman,  upon  the  termination  of 
an  award  to  the  effect  that  the  employers 
were  to  provide  him  with  a  light  employ- 
ment at  a  fixed  sum  per  week  for  the 
period  of  four  weeks,  and  upon  the  em- 
ployer's refusal  to  continue  the  light  em- 
ployment or  to  pay  compensation,  is  not 
entitled  to  commence  new  proceedings; 
but  his  remedy  lies  in  an  application  to 
review.95 

In  an  early  case  arising  under  the  act 
the  language  used  by  the  judges  intima- 
ted that  a  weekly  payment  awarded  as 
compensation  to  an  injured  workman  can 
be  reviewed  under  this  provision  only  in 
cases  where  the  circumstances  have 
changed  since  the  making  of  the  award.96 
The  actual  point  decided,  however,  was 
that  the  court  will  not  review  an  award 
merely  upon  the  ground  that  a  mistake 
had  been  made  as  to  the  amount  of  wages 
which  the  workman  had  been  earning 
at  the  time  of  the  accident.  In  a  sub- 


sequent case,  the  county  court  judge 
deemed  himself  bound  by  this  decision 
and  refused  to  review  a  nominal  award 
to  the  applicant  upon  the  ground  that 
no  change  of  circumstances  had  taken 
place;  the  court  of  appeal,  however,  held 
that  the  doctrine  of  res  judicata  does  not 
apply  to  a  finding  as  to  the  condition  of 
the  workman's  health.97  In  subsequent 
decisions  the  court  of  appeal  has  made 
it  plain  that,  upon  an  application  to  re- 
view, it  is  the  condition  of  the  workman 
at  the  time  of  the  application  that  is 
to  be  inquired  into  and  upon  the  review 
the  compensation  is  to  be  increased,  dim- 
inished, or  terminated  or  a  change  re- 
fused, as  the  case  may  be,  to  the  end 
that  compensation  be  terminated  or  be 
paid  in  such  amounts  as  the  present  con- 
dition of  the  workman  entitles  him  to 
under  the  act.98  The  same  view  has  been 
taken  by  the  court  of  session.99  There 
can,  however,  be  no  review  in  the  absence 


the  parties  comes  and  shows  that  the  sum 
originally  fixed  should  be  varied.  I  think 
the  act  contemplates  the  latter  form." 

95  Watts  v.  Logan  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  48,  7  B.  W.  C.  C.  82. 

96Crossfield  v.  Tanian  [1900]  2  Q.  B. 
(Eng.)  629,  82  L.  T.  N.  S.  813,  69  L.  J. 
Q.  B.  N.  S.  790,  48  Week.  Rep.  609,  16 
Times  L.  R.  476. 

97Sharman  v.  Holliday  [1904]  1  K.  B. 
(Eng.)  235,  73  L.  J.  K.  B.  N.  S.  176,  90 
L.  T.  N.  S.  46,  20  Times  L.  R.  135,  68 
J.  P.  151  (county  court  judge  directed  to 
entertain  application  of  workman  to  review 
nominal  award  where  he  had  showed  that 
he  could  not  obtain  any  work  because  of 
his  condition).  Collins,  M.  R.,  said:  "In 
the  first  place,  I  have  grave  doubts  whether 
the  doctrine  of  estoppel  by  judgment  ought 
to  be  extended  to  a  case  of  this  kind,  where 
the  decision  of  the  county  court  judge  on 
the  first  occasion  was  on  a  matter  which 
was  merely  one  of  opinion,  namely,  whether 
the  workman  was  in  such  a  condition  at 
a  particular  time  as  to  be  incapacitated 
from  working  in  future.  It  may  be  a 
question  which  in  many  cases  can  only 
be  conclusively  decided  by  experiment,  and 
in  such  a  case,  until  it  is  so  decided,  the 
clearest  opinion  on  that  question  on  the 
•part  of  the  judge  is  founded  merely  on 
the  evidence  of  experts,  which  may  be  dis- 
placed by  the  test  of  subsequent  experi- 
ment. I  can  conceive  a  case  in  which  the 
opinion  of  medical  experts  might  be  unan- 
imous to  the  effect  that  a  workman  was 
capable  of  doing  certain  work,  and  yet, 
afterwards,  upon  his  attempting  to  do  it, 
he  might  find  it  impossible.  Under  such 
circumstances  ought  the  doctrine  of  res 
judicata  to  apply  in  these  cases,  and  the 
decision  arrived  at  upon  the  evidence  of 
experts  to  stand  incontrovertible  for  ever? 
I  do  not  think  that  such  a  subject-matter 
is  one  to  which  the  doctrine  of  estoppel  by 
iudgment  ought  to  be  applied." 
L.R.A.1916A. 


98  In    Cawdor    &    G.    Collieries    v.    Jones 
(1909)    3   B.   W.   C.   C.    (Eng.)    59,   Cozens- 
Hardy,  M.  R.,  said:     "The  question  for  the 
county   court   judge   is — aye   or   no — Is   the 
workman   in   such  condition  that  the  com- 
pensation payments  ought  to  be  reduced?" 

An  award  based  upon  medical  opinion 
of  a  man's  physical  condition  at  one  time 
in  no  way  prevents  a  different  award  at 
a  subsequent  date,  when  experience  may 
have  proved  that  the  views  of  the  doctors 
were  wrong.  Radcliffe  v.  Pacific  Steam  Nav. 
Co.  [1910]  1  K.  B.  (Eng.)  685,  79  L.  J. 
K.  B.  N.  S.  429,  102  L.  T.  N.  S.  206,  26 
Times  L.  R.  319,  54  Sol.  Jo.  404,  3  B.  W. 
C.  C.  185. 

Upon  a  second  application  to  review 
weekly  payments  the  issue  is  whether  or 
not  the  workman  is  wholly  or  partially 
incapacitated,  and  it  is  error  to  exclude 
evidence  tending  to  show  that  the  medical 
evidence  as  to  the  man's  condition  given 
on  the  first  review  was  wrong.  Mead  v. 
Lockhart  (1909)  2  B.  W.  C.  C.  (Eng.) 
398. 

In  Thranmere  Bay  Development  Co.  v. 
Brennan  (1909)  2  B.  W.  C.  C.  (Eng.)  403, 
it  was  held  that  in  an  application  to  re- 
view the  weekly  payments  the  workman's 
present  condition  must  be  determined  and 
it  is  not  incumbent  upon  the  employer  to 
show  that  there  has  been  a  change  in  the 
condition  since  the  last  review  or  since 
the  award. 

It  is  the  purpose  of  the  act  that  an 
award  when  made  shall  continue  until  it 
is  reviewed  upon  a  showing  that  the  work- 
man's condition  warrants  a  change  in  the 
compensation.  Higgins  v.  Poulson  [1912] 
2  K.  B.  (Eng.)  292,  81  L.  J.  K.  B.  N.  S. 
690,  106  L.  T.  N.  S.  518,  28  Times  L.  R. 
323,  [1912]  W.  N.  90,  [1912]  W.  C.  Rep. 
244,  5  B.  W.  C.  C.  340. 

99  In  Boag  v.  Lochwood  Collieries   [1910] 
S.   C.   51,  47    Scot.   L.   R.   47,  3   B.  W.   C. 
C.   549,   the   Lord  Justice-Clerk   said:      "In 


REVIEW  OF  WEEKLY  PAYMENTS. 


165 


of  any  showing  that  there  has  been  no 
change  of  any  kind,  either  in  the  work- 
man's physical  condition  or  in  his  ability 
to  get  work,  and  that  the  prior  award 
was  not  a  proper  one.1 

Upon  a  review  the  employer  is  es- 
topped from  claiming  that  the  workman 
did  not  earn  the  amount  set  out  in  the 
memorandum  of  the  agreement.2  An 
agreement  for  payment  of  compensation 
based  on  total  incapacity  cannot  be  re- 
viewed on  the  application  of  the  work- 
man, upon  the  ground  that  his  condition 
is  worse.3 

Upon  an  application  for  review,  the 
mental  or  nervous  condition  of  the  work- 
man is  to  be  considered.4  In  the  case  of 
a  minor,  the  arbitrator  should  refuse  to 
consider  a  general  increase  in  wages  be- 
tween the  date  of  the  agreement  to  make 
compensation,  and  the  date  of  the  appli- 
cation to  review  as  per  se,  entitling  the 
claimant  to  an  increase  in  compensation; 
the  question  to  be  determined  is  what,  as 


a  matter  of  fact,  is  the  sum  which  the 
minor  workman  would  have  been  earning 
on  the  particular  date  had  he  not  been 
injured.6 

The  amount  of  the  weekly  payments 
need  not  necessarily  be  reduced  merely 
because  the  applicant  on  account  of  in- 
creasing old  age  would  not,  even  if  un- 
injured, have  been  able  to  earn  as  much 
as  before  the  accident.6  An  arbitrator 
has  jurisdiction  to  terminate  weekly  pay- 
ments upon  evidence  that  the  workman 
had  entirely  recovered,7  but  he  has  no 
jurisdiction  to  terminate  an  agreement 
for  compensation.8 

An  application  for  a  review  of  an 
award  or  of  a  recorded  agreement  may 
be  made  at  any  time  without  any  ques- 
tion or  dispute  having  arisen.9  So,  an 
application  for  review  may  be  made  by 
the  employer  at  a  time  when  no  compen- 
sation is  actually  being  paid,  and  no 
memorandum  of  agreement  has  been  re- 
corded.10 


cases  under  the  workmen's  compensation  act 
the  matter  is  not  final  so  long  as  a  payment 
is  being  made,  but  it  can  only  be  reopened 
on  the  ground  that  the  opinion  arrived 
at  before  was  wrong,  because  the  man  is 
now  incapacitated  to  a  different  extent  from 
that  which  was  found  to  exist  at  the 
time  when  the  compensation  was  assessed." 
iCox  v.  Braithwaite  (1912)  5  B.  W.  C. 
C.  (Eng.)  648.  In  this  case  there  had 
been  a  prior  review  and  the  workman 
sought  an  increase  as  of  a  date  prior  to 
the  first  review.  Cozens-Hardy,  M.  R.,  said: 
"He  might  have  maintained  an  application 
to  review  if  he  could  have  shown  that 
since  the  decision  of  the  court  of  appeal 
he  had,  being  able  to  do  this  work,  had 
no  opportunity  of  getting  it,  although  he 
had  tried." 

2  Gellyceidrim     Colliery     Co.     v.     Rogers 
(1909)   3  B.  W.  C.  C.   (Eng.)   62;  Crossfield 
v.   Tanian    [1900]    2   Q.   B.    (Eng.)    629,   69 
L.  J.  Q.  B.  N.  S.  790,  82  L.  T.  N.  S.  813, 
16   Times  L.   R,   476,  48  Week.   Rep.   609. 

3  The  county  court  judge  is  not  author- 
ized to  review  an  agreement  on  the  ground 
that  the  circumstances  have  changed  where 
the  agreement  was  for  the  payment  of  com- 
pensation  during  the   continuance  of  total 
incapacity,    although    the    payments    to    be 
made  did   not   amount   to   one   half   of   the 
wages,    and    subsequent    to    the    agreement 
the  workman  had  to  undergo  an  operation 
consisting   of   the   amputation   of   his   arm, 
for   an    injury   to   which   the   compensation 
had  been  paid.     Scott  v.  Long  Meg  Plaster 
Co.     (1914)     7    B.    W.    C.    C.    (Eng.)    502. 
Swinfen    Eady,   L.   J.,   said:      "The    agree- 
ment says:    As  a  compromise,  the  employers 
agree   that   the  applicant  is,  and  has  been 
since    December    7,    1912,    totally    incapaci- 
tated; and  then  upon  that  there  is  a  com- 
promise to  pay,  upon  the  footing  of  total  i 
incapacity,  an  agreed  sum  of  six   shillings  ' 
L.R.A.1916A. 


per  week.  In  my  opinion  the  subsequent 
amputation  of  the  arm  does  not  affect 
the  position  at  all.  It  is  an  unfortunate 
result,  but  it  does  not  affect  the  position. 
He  has  an  allowance  of  six  shillings  a  week 
upon  the  footing  of  total  incapacity,  am* 
the  subsequent  amputation  of  the  arm  has 
not  increased  the  totality  of  the  incapac- 
ity." 

4  Eaves     v.     Blaenclydach     Colliery     Co. 
[1909]   2  K.  B.    (Eng.)    73,  78  L.  J.  K.  B. 
N.  S.  809,  100  L.  T.  N.  S.  751. 

The  county  court  judge  is  justified  in 
refusing  to  review  the  award  of  compen- 
sation to  an  injured  workman,  where  there 
was  evidence  that  although  the  workman, 
who  was  struck  on  the  head  by  a  brick, 
was  physically  able  to  do  light  work,  he 
was  suffering  from  neurasthenia  resulting 
from  the  accident,  and  honestly  believed 
himself  incapable  of  working.  Waal  v. 
Steel  (1915)  112  L.  T.  N.  S.  (Eng.)  846. 

5  Malcolm   v.    Spowart    [1913]    W.   C.    & 
Ins.  Rep.  523,  50  Scot.  L.  R.  823,  6  B.  W. 
C.  C.  856. 

e  Smith  v.  Hughes  (1905;  C.  C.)  8  W. 
C.  C.  (Eng.)  115. 

7Reyners  v.  Makin  (1911)  4  B.  W.  C. 
C.  (Eng.)  267. 

8  Taylor  v.  London  &  N.  W.  R.  Co.  [1912] 
A.  C.  (Eng.)  242,  81  L.  J.  K.  B.  N.  S.  541, 
106  L.  T.  N.  S.  354,  28  Times  L.  R.  290,  56 
Sol.  Jo.  323,  [1912]  W.  C.  C.  95,  [1912]  W. 
X.  53,  49   Scot.  L.  R.  1020,  5  B.  W.  C.  C. 
218. 

9  Tyne    Tees    Shipping    Co.    v.    Whitlock 
[1913]   3  K.  B.   (Eng.)    642,  82  L.  J.  K.  B. 
N.  S.  1091,  109  L.  T.  N.  S.  84,   [1913]   W. 
N.  237,  57  Sol.  Jo.  716,  [1913]  W.  C.  &  Ins. 
Rep.  579,  6  B.  W.  C.  C.  559. 

10  An    application    by    the    employer    to 
have    the   compensation    terminated,   or,   in 
the  alternative,  to  have  an  award  of  partial 


166 


WORKMEN'S  COMPENSATION. 


The  House  of  Lords  has  decided  that, 
upon  an  application  to  terminate  pay- 
ment, the  arbitrator  may,  upon  finding 
that  the  incapacity  has  ceased,  terminate 
the  payment  upon  the  date  when  it 
ceased,  although  such  date  is  antecedent 
to  the  date  of  application  for  review.11 
This  decision  is  based  on  the  broad 
ground  that  the  act  provides  for  compen- 
sation only  during  incapacity,  and  when 
such  incapacity  ceases  the  workman  has 
no  claim  whatsoever  to  any  compensa- 
tion; and  the  failure  of  the  employer  to 
make  timely  application  for  review  does 
not  have  the  effect  of  giving  the  work- 
man a  right  which  the  act  itself  did  not 
give  him.  There  had  previously  been  a 
disagreement  between  the  lower  English 
and  Scottish  courts  as  to  whether  the  ar- 
bitrator, upon  terminating  the  payment, 
had  power  to  terminate  as  of  the  date 
of  the  application  or  only  at  the  date  of 


the  actual  decision.  Of  course  the  deci- 
sion of  the  House  of  Lords  goes  further 
than  even  those  courts  taking  the  first 
of  the  two  views  mentioned.  The  court 
of  appeal  in  England  took  the  view  that 
when  an  application  to  review  a  weekly 
payment  is  brought  before  an  arbitrator, 
he  is  not  bound  to  treat  the  agreement 
for,  or  award  of,  a  weekly  payment  as  en- 
forceable up  to  the  time  of  his  decision, 
but  has  jurisdiction  to  inquire  whether 
the  incapacity  had  ceased  when  the  appli- 
cation to  review  was  made,  or  at  any  and 
what  subsequent  time  before  the  hearing, 
and  to  make  his  award  with  reference  to 
the  date  so  determined.12  It  was  subse- 
quently held  by  the  same  court  that  the 
arbitrator  cannot  in  the  absence  of  a 
special  request  award  that  the  payment 
shall  terminate  from  a  date  antecedent 
to  the  request  for  a  review.13  The  earlier 
Scotch  cases  had  taken  a  different  view.14 


compensation,  is  competent  at  a  date  when 
no  compensation  is  actually  being  paid  to 
the  workman,  the  parties  being  in  dispute 
as  to  the  amount  and  duration  of  com- 
pensation, and  no  memorandum  of  agree- 
ment has  been  recorded.  Nelson  v.  Summer- 
lee  Iron  Co.  [1910]  S.  C.  360,  47  Scot.  L.  R. 
344;  Southhook  Fire-Clay  Co.  v.  Laugh- 
land  [1908]  S.  C.  831,  45  Scot.  L.  R.  664. 

11  If  upon   an   application   to  review   the 
county    court    judge    finds    that    the    appli- 
cant had  recovered  prior  to  the  date  of  the 
application    to    review,    he    may    terminate 
the  compensation  as  of  the  date  of  recovery 
and  not   merely  from  the  date  of  the  ap- 
plication   for    review.      Gibson    v.    Wishart 
(1914;    H.    L.    Sc.)    30    Times    L.    R.    540, 
[1914]  W.  N.  232,  58  Sol.  Jo.  592,  83  L.  J. 
P.  C.  N.  S.  321,   [1914]   W.  C.  &  Ins.  Rep. 
202,  51  Scot.  L.  R.  516,  111  L.  T.  N.  S.  466, 
7  B.  W.  C.  C.  348. 

Gibson  v.  Wishart  (Scot.)  was  followed 
in  Bagley  v.  Furness  [1914]  3  K.  B.  (Eng.) 
974,  83  L.  J.  K.  B.  N.  S.  1546,  [1914]  W. 
N.  300,  7  B.  W.  C.  C.  560. 

12  Morton   v.   Woodward    [1902]    2  K.   B. 
(Eng.)   276,  71  L.  J.  K.  B.  N.  S.  736,  66  J. 
P.  660,  51  Week.  Rep.  54,  86  L.  T.  N.  S.  878, 
4  W.  C.  C.  143. 

13  Charing  Cross,  E.  &  H.  R.  Co.  v.  Boots 
[1909]   2  K.  B.   (Eng.)   640,  78  L.  J.  K.  B. 
N.  S.  1115,  101  L.  T.  N.   S.  53,  25  Times 
L.  R.  683,  2  B.  W.  C.  C.  385;  Upper  Forest 
&  Western  Steel  &  Tinplate  Co.  v.  Thomas 
[1909]   2  K.  B.   (Eng.)   631,  78  L.  J.  K.  B. 
N.  S.  1113. 

The  decision  in  Hosegood  v.  Wilson 
[1911]  1  K.  B.  (Eng.)  30,  80  L.  J.  K.  B. 
N.  S.  519,  103  L.  T.  N.  S.  616,  27  Times  L. 
R.  88,  4  B.  W.  C.  C.  30,  was  to  the  effect 
that  where  the  arbitrator  had  reduced  the 
payment  as  of  the  date  prior  to  the  ap- 
plication, the  employer  could  not  treat  the 
excess  he  had  paid  subsequent  to  that  date 
as  payment  pro  tanto  in  advance  on  the 
reduced  payment  for  compensation. 
L.R.A.1916A. 


14  The  Scottish  court  of  sessions,  in  Don- 
aldson Bros.  v.  Cowan  [1909]  S.  C.  1292, 
46  Scot.  L.  R.  920,  2  B.  W.  C.  C.  390, 
adopted  the  view  of  the  English  court  of 
appeal  as  expressed  in  Morton  v.  Wood- 
ward (Eng.)  supra. 

The  Scottish  case  above  cited  overruled 
earlier  Scotch  cases  to  the  effect  that  in 
an  application,  under  fl  (12)  of  the  first 
schedule  to  the  workmen's  compensation 
act  1897,  to  review  a  weekly  payment  under 
the  act,  the  arbitrator  has  power  to  end. 
diminish,  or  increase  the  payments  only 
as  from  the  date  of  his  decision  in  the 
application.  Steel  v.  Oakbank  Oil  Co. 
(1902)  5  Sc.  Sess.  Cas.  5th  series,  244,  40 
Scot.  L.  R.  205,  10  Scot.  L.  T.  505;  Pum- 
pherston  Oil  Co.  v.  Cavaney  (1903)  5  Sc. 
Sess.  Cas.  5th  series,  963,  40  Scot.  L.  R. 
724,  11  Scot.  L.  T.  171;  Baird  v.  Stevenson 
[1906-07]  S.  C.  (Scot.)  1259. 

In  Lochgelly  Iron  &  Coal  Co.  v.  Sinclair 
[1909]  S.  C.  (Scot.)  922,  Lord  Salveson 
recognized  the  earlier  disagreement  between 
the  English  and  Scotch  tribunals,  and  said: 
"One  other  matter  has  been  conclusively 
settled  by  authority.  Where  the  employer's 
liability  to  pay  compensation  has  been 
judicially  ascertained,  either  by  an  award 
of  the  arbitrator  or  by  its  equivalent,  a 
recorded  memorandum  of  agreement,  s~ch 
liability  can  only  be  terminated  by  the 
judgment  of  the  arbitrator  on  an  applica- 
tion made  to  him  by  the  employer.  On 
this  matter  all  the  judges  who  took  part 
in  the  following  three  decisions,  Steel  v. 
Oakbank  Oil  Co.,  Pumpherston  Oil  Co.  v. 
Cavaney  (Scot.)  and  Morton  v.  Woodward 
(Eng.)  were  absolutely  agreed.  There  is 
no  doubt  a  conflict  between  the  Scotch  and 
English  tribunals  as  to  the  date  on  which 
the  cessor  of  liability  takes  place, — the 
former  holding  that  it  can  only  operate 
from  the  date  of  the  actual  decision,  while 
the  view  taken  in  England  is  that  the  arbi- 
trator has  jurisdiction  to  review  the  pay- 


REVIEW  OF  WEEKLY  PAYMENTS- 


167 


Whether  or  not  an  employer  who  has 
paid  compensation  to  a  workman  after 
his  incapacity  has  ceased  is  entitled  to 
recover  back  such  compensation,  is  dis- 
cussed but  not  decided  in  the  decision  in 
the  House  of  Lords.15 

Upon  an  application  to  review,  made 
by  a  workman,  who  at  the  date  of  the 
accident  whereby  he  was  injured  was 
under  twenty-one  years  of  age,  the  in- 
crease, if  any,  allowable  under  the  pro- 
viso of  schedule  I.  f  16,  cannot  be  made 
from  a  date  prior  to  the  date  of  the  ap- 
plication to  review,  since  that  proviso 
is  solely  for  the  benefit  of  the  workman.16 

Where  an  application  for  a  review 
comes  before  the  arbitrator  at  the  same 
time  as  an  application  to  register  an 
agreement,  he  is  not  bound  to  grant  war-  > 


rant  to  record  the  agreement  without 
awaiting  the  result  of  the  proof  in  the 
proceeding  to  review.17  But  he  cannot 
grant  warrant  to  record  the  agreement 
and  dismiss  the  application  to  review 
without  finding  what  the  wage-earning 
capacity  of  the  workman  is.18  An  award 
terminating  weekly  payments  is,  in  the 
absence  of  an  appeal,  final;  and  another 
application  for  payments  will  be  de- 
nied.19 But  where  payments  are  made 
under  an  agreement,  the  mere  report  of 
the  medical  referee  that  the  incapacity 
has  ceased  and  the  acquiescence  of  the 
applicant  in  the  nonpayment  for  several 
weeks  will  not  prevent  the  applicant 
from  making  further  application  for  pay- 
ment.20 


ments  as  from  the  date  of  the  application. 
If  the  question  is  to  be  still  open,  I  should 
have  no  difficulty  in  concurring  with  the 
reasoning  of  the  English  judges  in  the  case 
of  Woodward,  and  with  the  opinion  of  the 
dissenting  judges  in  the  two  Scotch  cases." 

In  Southhook  Fire-Clay  Co.  v.  Laughland 
[1908]  S.  C.  831,  45  Scot.  L.  R.  664,  1  B. 
W.  C.  C.  405,  it  is  held  that  on  an  applica- 
tion to  review  payments  made  under  an 
unregistered  agreement,  an  order  may  be 
made  terminating  the  payment  from  the 
date  when  the  incapacity  ceased,  since  the 
unregistered  agreement  did  not  have  the 
force  of  a  decree.  This  supposed  distinc- 
tion between  decree  and  unregistered  agree- 
ment is  disposed  of  by  the  decision  of  the 
House  of  Lords,  cited  above. 

15  Gibson  v.  Wishart  (1914;  H.  L.  Sc.) 
30  Times  L.  R.  540,  [1914]  W.  N.  232,  58 
Sol.  Jo.  592,  83  L.  J.  P.  C.  N.  S.  321,  [1914] 
W.  C.  &  Ins.  Rep.  202,  51  Scot.  L.  R.  516, 
111  L.  T.  N.  S.  466,  7  B.  W.  C.  C.  348. 

18  Williams  v.  Bwllfa  &  M.  Dare  Steam 
Collieries  [1914]  2  K.  B.  (Eng.)  30,  83  L. 
J.  K.  B.  N.  S.  442,  110  L.  T.  N.  S.  561, 
[1914]  W.  N.  44,  7  B.  W.  C.  C.  124. 

"McEwan  v.  Baird  [1909-10]  S.  C. 
(Scot.)  436;  McVey  v.  Dixon  [1909-10] 
S.  C.  (Scot)  544. 

In  the  McEwan  Case,  after  referring  to 
Upper  Forest  &  W.  Steel  &  Tinplate  Co. 
v.  Thomas  [1909]  2  K.  B.  (Eng.)  631,  78 
L.  J.  K.  B.  N.  S.  1113,  and  Charing  Cross, 
E.  &  H.  R.  Co.  v.  Boots  [1909]  2  K.  B. 
(Eng.)  640,  78  L.  J.  K.  B.  N.  S.  1115,  Lord 
Dunedin  said:  "They  show,  I  think,  con- 
clusively, that  the  English  courts  proceed 
thus:  WThere  the  county  court  judge  is 
applied  to  at  one  and  the  same  time  to 
register  a  memorandum  and  to  vary  a  pay- 
ment, their  plan  is  to  allow  the  memoran- 
dum to  be  registered,  but  to  grant  a  stay 
of  execution  in  order  that  the  other  matter 
may  be  taken  up,  and  then,  according  as  the 
decision  in  the  other  matter  is  one  way 
or  another,  that  stay  of  execution  is  either 
removed  or  not  as  the  case  may  be." 

18  Where  the  employer  objects  to  the 
filing  of  a  memorandum  of  agreement, 
L.R.A.1916A. 


upon  the  ground  that  incapacity  has  ceased, 
and  asks  that  the  payment  be  terminated, 
and  the  arbitrator  finds  that  the  man  is 
still  incapacitated  to  earn  full  wages  but 
is  fit  for  some  work,  the  arbitrator  must 
go  further  and  pronounce  a  finding  whether 
the  wage-earning  capacity  of  the  respondent 
is  gone,  or,  if  not,  to  what  amount  of  com- 
pensation, if  any,  he  is  entitled.  Smith 
v.  Petrie  [1913]  W.  C.  &  Ins.  Rep.  378,  50 
Scot.  L.  R.  749,  6  B.  W.  C.  C.  833. 

19  Nicholson  v.  Piper  [1907]  A.  C.  (Eng.) 
215,  76  L.  J.  K.  B.  N.  S.  856,  97  L.  T.  N.  S. 
119,  23  Times  L.  R.  620. 

Where  the  county  court  judge  has  juris- 
diction to  make  a  final  award  or  a  sus- 
pensory award  on  an  original  application, 
and  finds  in  favor  of  the  employers  and 
refuses  to  make  an  .award,  the  matter  is 
res  judicata  and  cannot  be  opened  at  a 
subsequent  application  for  compensation  by 
the  workman.  Green  v.  Cammell  [1913] 
3  K.  B.  (Eng.)  665,  82  L.  J.  K.  B.  N.  S. 
1230,  109  L.  T.  N.  S.  202,  29  Times  L.  R. 
703,  [1913]  W.  N.  259,  6  B.  W.  C.  C.  735. 

Payments  of  compensation  having  been 
ended  by  the  arbitrator,  on  an  application 
for  a  review  under  the  first  schedule,  a 
new  application  was  incompetent,  and  the 
workman  cannot  again  obtain  compensation 
in  respect  of  the  accident.  Cadenhead  v. 
Ailsa  Shipbuilding  Co.  [1909-10]  S.  C. 
(Scot.)  1129. 

20  The   certificate   of   the  medical   referee 
that    incapacity    has    ceased    does    not    bar 
a  subsequent  application  to  the  sheriff  by 
the    workman    against    his    employers    for 
an  award  to  fix  the  amount  of  compensation 
due    in   respect   of   an    alleged    supervening 
incapacity   where   no   application   was   ever 
made  by  the  employers  for  an  order  to  end 
the  compensation.    King  v.  United  Collieries 
Co.   [1909-10]   S.  C.   (Scot.)  42.     Lord  Low 
observed:     "The  obligation  of  the  employers 
to   give   him    weekly   payments   during   in- 
capacity has  never  been  terminated  in  any 
way   whatever.     All  that  has  been   settled 
by    the    report    of    the    medical    referee    is 
that  at  a  certain  date  he  was  not  incapaci- 
tated." 


168 


WORKMEN'S  COMPENSATION. 


In  view  of  the  fact  that  an  award 
terminating  the  compensation  is  final, 
there  has  grown  up  the  custom  of  award- 
ing a  "penny  a  week"  to  a  workman  who 
is  at  the  time  of  the  application  able  to 
do  his  ordinary  work,  but  is  permanent- 
ly injured,  and  may  at  any  time  again 
become  incapacitated  by  reason  of  the 
injury.  It  is  conceded  that  the  statute 
makes  no  provision  for  such  an  award, 


and  the  only  apparent  justification  for  it 
is  that  it  is  a  recognized  custom,  is 
convenient,  and  prevents  the  injustice 
that  would  occur  when  the  compensation 
has  been  terminated  in  cases  where  there 
may  be  a  recurrence  of  the  workman's 
incapacity  which  is  due  to  the  incident. 
This  custom  has  been  held  incompetent 
by  both  divisions  of  the  court  of  ses- 
sion.21 But  it  is  upheld  by  the  court  of 


2iRosie  v.  Mackay  [1910]  S.  C.  714, 
47  Scot.  L.  R.  654;  Clelland  v.  Singer 
Mfg.  Co.  (1905)  7  Sc.  Sess.  Cas.  5th  series 
(Scot.)  975. 

In  the  latter  case,  Lord  Adam  observed: 
"The  13th  section  of  the  first  Schedule, 
for  example,  gives  to  the  employer,  where 
weekly  payments  have  been  continued  for 
not  less  than  six  months,  a  right  to  have 
his  liability  therefor  redeemed  by  payment 
of  a  lump  sum.  This  clause  appears  to  me 
clearly  to  indicate  that  it  was  not  intended 
that  an  employer's  liability  under  the  act 
should  continue  for  an  indefinite  time,  but 
that  he  should  be  able  to  get  rid  of  it  by 
payment  of  a  lump  sum  at  the  end  of  six 
months.  But  it  appears  to  me  that  the 
device  of  suspending  the  weekly  payments, 
and  substituting  therefor  the  payment  of 
a  nominal  sum  of  a  penny,  would  render 
that  clause  practically  inoperative.  It  was 
admitted  on  both  sides  that  the  payment 
of  the  nominal  sum  of  a  penny  could  not 
be  treated  as  a  weekly  payment  under  the 
act.  If  that  be  so,  then  in  this  case,  for 
example,  in  which  the  weekly  payments 
ceased  at  the  end  of  four  months,  if  the 
appellants  were  to  apply  to  have  their  lia- 
bility under  the  act  redeemed  by  payment 
of  a  lump  sum,  they  would  be  met  by  the 
plea  that  the  weekly  payments  had  not 
been  continued  for  the  necessary  period  of 
six  months.  I  see  no  answer  to  that  plea, 
with  the  result  that  the  appellant's  liability 
under  the  act  would  be  continued  indefinite- 
ly. I  think  that  the  act  assumes  that  the 
weekly  payments  are  to  be  continuous,  and 
if  at  the  end  of  six  months  an  application 
is  made  by  an  employer  to  an  arbiter  for 
redemption  of  his  liability  by  payment  of 
a  lump  sum,  the  arbiter  must  apply  his 
mind  to  the  facts  as  then  existing,  and 
determine  the  amount  of  that  sum  to  the 
best  of  his  ability.  So  I  think  that  when 
an  application  is  made  to  an  arbiter,  under 
the  12th  section,  to  review  a  weekly  pay- 
ment, he  must  apply  his  mind  to  the  facts 
as  they  exist  at  the  time,  and  either  di- 
minish, increase,  or  end  the  payment,  or, 
by  refusing  the  application,  continue  it, 
but  that  he  has  no  power  under  the  act 
to  suspend  it." 

In  the  case  of  Rosie  v.  Mackay  (Scot.) 
Lord  Low,  recognizing  the  hardship  which 
might  follow  the  rule  laid  down  by  the 
Scottish  courts,  said  that  the  provision  of 
the  twelfth  paragraph  of  the  first  schedule 
—that  upon  review  the  weekly  payments 
may  be  "ended,  diminished  or  increased" — 
merely  indicated  generally  the  scope  of  the 
L.R.A.1916A. 


arbiter's  jurisdiction,  and  was  not  an  ex- 
haustive review  of  his  powers,  and  did  not 
necessarily  exclude  another  course  if  the 
justice  of  the  case  so  required.  He  further 
observed:  "If  that  view  be  sound,  the 
next  question  is,  what  is  the  form  of  pro- 
cedure which  should  be  adopted?  The 
method  adopted  in  the  English  courts,  and 
which  has  now  received  the  approval  of 
the  court  of  appeal,  is  to  diminish  the 
weekly  payment  to  the  nominal  sum  of  Id. 
With  great  respect,  I  cannot  think  that 
that  is  a  course  which  should  be  followed. 
It  seems  to  me  to  proceed  upon  the  view 
that  the  arbiter  must  either  end,  diminish, 
or  increase  the  weekly  payment.  I  have 
already  given  my  reasons  for  thinking  that 
the  arbiter  is  not  so  restricted;  but  assum- 
ing that  he  is,  the  awarding  of  a  nominal 
sum  seems  to  me  to  be  indefensible,  because 
it  is  a  device  whereby  it  is  attempted  to 
keep  the  letter  of  the  law  while  disregard- 
ing the  substance.  The  course  which  I 
venture  to  suggest  should  be  followed  in 
this  and  similar  cases  is  something  of  this 
nature:  the  arbiter  might  find  that  in 
respect  the  medical  referee  had  reported 
that  the  respondent  was  not  incapacitated 
for  work  but  was  able  for  his  ordinary 
work,  he  was  not  entitled  to  receive  any 
weekly  payment  so  long  as  he  remained 
in  that  condition,  and  with  that  finding  he 
might  sist  procedure  or  continue  the  cause, 
with  leave  to  either  party  to  renew  the  ap- 
plication in  the  event  of  a  change  of  cir- 
cumstances occurring.  Of  course  I  merely 
suggest  the  kind  of  order  (and  not  the 
precise  terms  of  it)  which  I  think  would 
best  meet  the  necessity  of  the  case.  It 
may  be  objected  that  such  a  course  would 
interfere  with  the  employer's  right  to  re- 
deem. No  doubt  it  would  postpone  the 
exercise  of  that  right,  and  I  recognize  the 
force  of  the  objection.  But  it  seems  to  me 
that  there  is  no  course  which  is  not  open 
to  some  objection.  If  the  weekly  payment 
were  ended,  then,  although  the  workman 
is  permanently  injured  and  may  any  day 
become  totally  incapacitated,  he  would  lose 
his  right  to  compensation  in  the  event  of 
incapacity  actually  recurring,  a  result  which 
in  my  opinion  would  be  contrary  to  the 
statute.  On  the  other  hand,  if  it  were 
held  that  the  arbiter  is  bound  at  once  to 
fix  the  amount  of  compensation,  he  can  do 
no  more  than  make  a  rough  estimate,  which 
as  events  turned  out  might  be  a  great 
deal  too  much  or  a  great  deal  too  little. 
I  therefore  think  that  in  a  case  such  as 
the  present, — where  you  have  a  workman 


REVIEW  OF  WEEKLY  PAYMENTS. 


169 


appeal.22  In  the  House  of  Lords  the 
question  was  at  first  expressly  reserv- 
ed ;  23  but  in  a  subsequent  case  the  posi- 
tion was  taken  by  all  of  the  law  lords 
delivering  separate  judgments  that  the 
county  court  judge  or  arbitrator  has  ju- 
risdiction, in  a  case  where  upon  the  evi- 
dence he  is  of  the  opinion  that  incapa- 
city may  probably  recur,  to  keep  alive 
the  liability  of  the  employers  either  by 
a  suspensory  order,  or  by  an  order  to 
reduce  the  weekly  payment  to  a  nominal 
sum,  or  by  some  other  device.24  Even 
after  the  decision  of  the  House  of  Lords 


that  the  practice  of  awarding  a  penny  a 
week  might  be  sustained,  the  Scottish 
court  held  that  such  a  proceeding  was  a 
mere  subterfuge  and  that  the  same  end 
might  be  obtained  by  merely  making  a 
suspensory  award.25 

In  cases  in  which  the  workman  has  re- 
covered his  capacity  for  work,  but  the 
injury  was  of  such  a  character  that  in- 
capacity might  recur  in  the  future,  all 
of  the  courts  now  recognize  the  practice 
of  making  some  form  of  suspensory 
award,  either  by  awarding  a  penny  a 
week  or  by  making  a  declaration  of  lia- 


permanently  injured  but  able  in  the  mean- 
time to  do  his  work, — the  course  which  is 
fairest  to  both  parties  and  most  in  con- 
sonance with  the  scheme  of  the  statute 
is  of  the  kind  which  I  have  indicated.  I 
do  not  think  that  the  employer  can  com- 
plain if  he  is  relieved  of  all  payments  so 
long  as  the  workman  is  able  for  his  ordi- 
nary work,  while  the  workman  gets  all 
that  he  is  entitled  to  if  he  can  come  back 
to  the  arbiter  in  the  event  of  incapacity 
supervening." 

Freeland  v.  Macfarlane,  Land  &  Co. 
(1900)  2  Sc.  Sess.  Cas.  5th  series  (Scot.) 
832,  and  Ferrier  v.  Gourley  Bros.  &  Co. 
(1902)  4  Se.  Sess.  Cas.  5th  series,  711,  39 
Scot.  L.  R.  453,  9  Scot.  L.  T.  517,  were 
reconsidered  in  Clelland  v.  Singer  Mfg.  Co. 
(Scot.)  supra. 

22  The  Tynron  v.  Morgan  [1909]  2  K.  B. 
(Eng.)  66.  Fletcher,  Moulton,  L.  J.,  said: 
"It  [the  power  of  review]  must  not,  how- 
ever, be  allowed  to  work  injustice  to  the 
workman,  and  I  will  put  a  case  which  I 
think  shows  conclusively  that,  where  there 
is  a  permanent  injury,  no  judge  is  entitled 
to  treat  the  fact  that  a  man  can  at  the 
moment  earn  just  as  much  as  he  could 
before  his  accident  as  being  a  justification 
for  terminating  the  compensation.  Sup- 
pose there  is  an  injury  which  produces  in- 
capacity only  in  the  winter;  in  other  words, 
suppose  that  in  the  summer,  when  the 
weather  is  fairly  warm,  the  man  can  work 
as  well  as  he  could1  previously  to  the  ac- 
cident, but  in  the  cold  weather  he  is  wholly 
or  partially  incapacitated,  and  that  the 
owners  apply  in  the  summer  for  a  review. 
They  are  perfectly  entitled  to  have  the 
compensation  cut  down  to  a  nominal  amount 
at  the  time,  but  they  are  not  entitled  to 
have  the  compensation  terminated,  because, 
if  once  terminated,  it  cannot  be  reviewed 
again.  If  we  were  to  hold  that  the  fact 
that  the  man  was  earning  full  wages  at 
the  moment  of  review  was  sufficient  to 
entitle  the  compensation  to  be  terminated, 
the  consequence  would  be  that  the  county 
court  judge,  with  full  knowledge  of  the 
admitted  fact  that  when  the  winter  came 
on  the  man  would  develop  an  incapacity 
due  to  the  accident,  would  be  obliged  to 
stop  all  compensation  for  the  future.  The 
tribunals  which  have  to  administer  this 
act  have  got  out  of  the  difficulty  by  grant- 
L.R.A.1916A. 


ing  an  award  for  nominal  compensation 
so  long  as  the  immediate  earning  powers 
are  not  diminished,  when  there  is  reason 
to  believe  that  they  are  not  permanently 
as  great  as  they  were  before  the  accident. 
This  court  has  again  and  again  had  to  deal 
with  such  awards,  and  has  treated  them  as 
valid,  and  I  think  that  they  are  in  the 
interest  of  both  parties." 

Where  there  is  some  reason  to  anticipate 
any  recurrence  of  the  difficulty,  the  county 
judge  should  make  a  suspensory  award  of 
a  nominal  amount,  in  order  to  keep  alive 
the  employer's  liability.  Griga  v.  The 
Harelda  (1910)  3  B.  W.  C.  C.  (Eng.)  116, 
Cozens-Hardy,  M.  R.,  observed:  "In  my 
opinion  this  court  has  distinctly  laid  down 
a  principle  from  which  we  should  not  de- 
part, that  in  a  case  of  this  kind,  where  a 
man  has  been  ruptured,  though  by  wearing 
a  truss  he  may  be  physically  able  to  earn 
full  wages,  still  the  circumstances  are  such 
that  there  is  a  possibility,  if  not  a  prob- 
ability, that  in  the  future  there  will  be  bad 
effects  resulting  from  the  accident  which 
will  effect  his  earning  capacity." 

23  Nicholson  v.  Piper  [1907]  A.  C.  (Eng.) 
215,  76  L.  J.  K.  B.  N.  S.  856,  97  L.  T.  N.  S. 
119,  23  Times  L.  R.  620. 

24  Taylor    v.    London    &    N.    W.    R.    Co. 
[1912]   A.  C.   (Eng.)   242,  81  L.  J.  K.  B.  N. 
S.  541,  106  L.  T.  N.  S.  354,  28  Times  L.  R. 
290,  56   Sol.  Jo.  323,   [1912]    W.  C.  C.   95, 
[1912]  W.  N.  53,  49  Scot.  L.  R.  1020,  5  B. 
W.  C.  C.  218. 

In  Weir  v.  North  British  R.  Co.  (1912) 
49  Scot.  L.  R.  772,  [1912]  S.  C.  1073,  5 
B.  W.  C.  C.  595,  weekly  payments  were 
terminated  by  the  sheriff  substitute,  but 
as  this  decision  was  rendered  prior  to  the 
decision  of  the  House  of  Lords  in  Taylor 
v.  London  &  N.  W.  R.  Co.  (Eng.,  supra, 
as  to  open  awards,  the  court  of  sessions 
sent  the  case  back  to  be  reconsidered  in 
the  light  of  that  case. 

25Dempsey  v.  Caldwell  [1914]  S.  C.  28, 
51  Scot.  L.  R.  16,  [1913]  2  Scot.  L.  T.  ?,67, 
7  B.  W.  C.  C.  823.  In  this  case  the  work- 
man had  sustained  permanent  injuries  to 
his  right  hand;  and  the  court  of  sessions 
remitted  the  case  to  the  sheriff  substitute 
who  had  previously  terminated  the  pay- 
ment, to  consider  whether  the  ending  of 
the  payment  of  compensation  should  be 
permanent  or  temporary. 


170 


WORKMEN'S  COMPENSATION. 


bility,  thus  keeping  the  matter  open  for 
future  determination.  The  question 
whether  the  case  is  one  to  be  thus  kept 
open  depends  upon  the  facts  of  each 
case.26  It  is  not  a  case  for  suspensory 
award  where  the  workman  has  been 
found  to  be  wholly  recovered  from  the 
accident.27 

The  county  court  judge  may  make  a 
suspensory  award  upon  an  original  ap- 
plication as  well  as  under  an  applica- 
tion to  review.28  The  mere  fact  that 
a  minor  is  earning  the  same  or  more 
after  the  injury  than  before,  does  not 


warrant  the  county  court  judge  in  term- 
inating the  weekly  payments.2^  But  the 
arbiter  cannot  increase  weekly  payments 
beyond  the  50  per  cent  of  the  weekly 
sum  which  the  workman  would  probably 
have  been  earning  at  the  date  of  the  re- 
view if  he  had  remained  uninjured,  al- 
though the  workman  was  a  minor  whose 
earning  capacity  had  increased  beyond 
what  it  was  at  the  time  of  the  award.30 
In  determining  what  weekly  sum  the 
workman,  under  age,  would  probably 
have  been  earning  at  the  date  of  the  re- 
view had  he  remained  uninjured,  the 


26  The  county  court  judge  is  not  justified 
in  granting  merely  a  suspensory  award 
of  1  penny  a  week  where,  but  three  days 
before  the  application,  there  had  been  a 
second  amputation  of  part  of  the  finger 
which  had  been  crushed.  Burgess  v.  Jewell 
(1911)  4  B.  W.  C.  C.  (Eng.)  145. 

On  the  application  by  the  employers  to 
terminate  the  payment  of  a  penny  a  week, 
the  question  for  the  county  court  judge  is, 
Is  the  workman  in  such  a  position  that  in 
the  open  market  his  earning  capacity  in 
the  future  may  be  less  than  it  was  before 
the  accident,  as  a  result  of  the  accident? 
The  question  is  not  whether  the  employers 
are  paying  him  the  same  wages  a=  he  re- 
ceived before  the  accident.  Birmingham 
Cabinet  Mfg.  Co.  v.  Dudley  (1910)  102  L. 
T.  N.  S.  (Eng.)  619,  3  B.  W.  C.  C.  169. 

Where  the  workman's  inability  to  earn 
as  much  or  more  than  before  the  accident 
is  due  to  his  drinking  habits,  he  is  entitled 
to  no  more  than  an  award  of  a  penny  a 
week.  Hill  v.  Ocean  Coal  Co.  (1909)  3  B. 
W.  C.  C.  (Eng.)  29. 

The  question  whether  a  workman  who 
has  lost  a  finger  and  received  permanent 
injury  to  two  other  fingers  is  entitled  to 
a  suspensory  award  is  a  question  of  fact 
for  the  county  court  judge,  and  his  de- 
cision that  the  workman  is  not  so  entitled 
will  not  be  disturbed,  although  medical 
evidence  was  given  to  the  effect  that  the 
lad  would  always  be  handicapped  and  would 
never  be  able  to  grip  firmly  with  that 
hand,  and  a  foreman  called  on  behalf  of 
the  employers  said  that  although  he  thought 
the  lad  was  now  able  to  work  just  as  well 
as  before  the  accident,  still  he  would  engage 
a  man  whose  hand  was  not  injured  in  pref- 
erence to  one  who  had  lost  one  or  more 
fingers.  Emmerson  v.  Donkin  (1910)  4  B. 
W.  C.  C.  (Eng.)  74. 

Where  the  workman  has  lost  the  sight 
of  one  eye  by  accident  and  subsequently 
regained  his  earning  capacity,  upon  an 
application  to  terminate  payment  the  work- 
man is  entitled  to  a  declaration  of  liability, 
where  there  is  possible  loss  of  the  other 
eye  from  suppuration  from  the  injured 
eye,  although  it  is  possible  that  this  could 
be  avoided  by  having  the  dead  eye  removed. 
Braithwaite  Y  Cox  (1911)  5  B.  W.  C.  C. 
(Eng.)  77.  Cozens-Hardy,  M.  R.,  said:  "A 
man  cannot  be  compelled  to  put  himself 
L.R.A.1916A. 


in  a  worse  earning  position,  as  this  man 
would  if  he  were  to  have  his  dead  eye 
removed.  He  would  be  a  palpable  one- 
eyed  man  if  he  underwent  this  operation." 

Where  the  employers  offered  to  receive 
a  workman  back,  and  he  admitted  he  was 
then  able  to  do  all  his  old  work,  he  is  not 
entitled  to  such  a  declaration  of  the  liability 
of  his  former  employers  as  would  preserve 
his  rights  in  the  event  of  supervening  in- 
capacity. Husband  v.  Campbell  (1903)  5 
Sc.  Sess.  Gas.  5th  series,  1146,  40  Scot. 
L.  R.  822,  11  Scot.  L.  T.  243. 

It  is  the  duty  of  the  county  court  judge 
to  make  a  declaration  of  liability,  and  not 
to  terminate  the  payment  of  compensation 
whenever  there  exists  a  permanent  injury 
which  may  in  the  future  develop  and  lessen 
the  earning  power.  Chapman  v.  Sage  &  Co. 
(1915)  8  B.  W.  C.  C.  (Eng.)  559. 

27  London  &  N.  W.  R.  Co.  v.  Taylor  (1910) 
4  B.  W.  C.  C.  (Eng.)  11;  Cranfield  v.  Ansell 
(1910)   4  B.  W.  C.  C.   (Eng.)   57. 

Where  the  incapacity  has  ceased,  and 
the  injury  to  his  finger  has  not  prevented 
the  workman  from  obtaining  work,  it  is 
not  a  case  for  a  suspensory  award.  Goodall 
v.  Kramer  (1910)  3  B.  W.  C.  C.  (Eng.) 
315. 

It  is  competent  for  the  arbitrator  to  ter- 
minate the  compensation  and  not  give  a 
suspensory  award,  where  the  workman  has 
recovered  his  capacity  for  work,  and  the 
injury  is  of  such  a  character  as  not  to  im- 
pair his  chance  for  work  in  his  former 
line  of  employment,  or  in  any  other  line 
which  he  might  reasonably  hope  to  follow. 
Watson  v.  Beardmore  [1914]  S.  C.  718, 
[1914]  2  Scot.  L.  T.  481,  51  Scot.  L.  R.  621, 
7  B.  W.  C.  C.  913. 

28  Green  v.  Cammell  [1913J  3  K.  B.  (Eng.) 
665,  82  L.  J.   K.  B.  N.  S.  1230,  109  L.  T. 
N.   S.  202,  29  Times  L.  R.   703,   [1913]   W. 
N.  259,  6  B.  W.  C.  C.  735. 

29  Wilson    v.   Jackson's    Stores    (1905)    7 
W.  C.  C.   (Eng.)   122. 

The  fact  that  a  minor  workman  is  earn- 
ing the  same  wages  as  before  the  accident 
is  not  in  itself  conclusive  as  to  the  ter- 
mination of  his  right  to  compensation. 
Malcolm  v.  Bowhill  Coal  Co.  [1909-10]  S. 
C.  447,  47  Scot.  L.  R.  449,  3  B.  W.  C.  C. 
562. 

SOAmbridge  v.  Good  (1912)  5  B.  W.  C.  C. 
(Eng.)  691. 


REVIEW  OF  WEEKLY  PAYMENTS. 


171 


primary  proposition  to  be  dealt  with  is 
what  would  have  been  his  general  earn- 
ing capacity,  not  what  would  have  been 
his  earning  capacity  in  the  particular 
employment  in  which  he  then  was.31 
Where  a  work  girl,  seventeen  years  of 
age,  who  had  injured  her  left  hand, 
which  resulted  in  the  loss  of  the  whole 
of  her  first  and  part  of  her  second  finger, 
had  fully  recovered  so  far  as  the  nature 
of  the  injury  allowed,  and  was  offered 
light  work  by  her  employer  at  a  wage 
considerably  in  advance  of  that  which 
she  was  receiving  at  the  time  of  her  in- 
jury, the  county  court  judge  was  not  jus- 
tified in  continuing  an  award  of  com- 
pensation which  in  no  way  purported  to 
be  founded  on  the  probable  increase  of 
her  earnings  under  the  proviso  in  sched- 
ule I.  (16). 32 

Upon  an  application  to  review,  the 
onus  of  proving  that  the  workman's  pres- 
ent condition  justifies  a  change  in  the 


award  is  upon  the  person  seeking  such 
change.33  Whenever  the  employer  wishes 
to  have  the  compensation  ended  or  dim- 
inished, the  burden  is  upon  him  to  show 
a  change  of  circumstances  justifying  it; 
but  when  the  employer  meets  this  burden 
by  a  certificate  of  the  medical  referee, 
then  the  burden  is  upon  the  workman  to 
show  that  any  supervening  incapacity  is 
due  to  the  accident.84 

The  county  court  judge  or  other  arbi- 
trator is  bound  by  the  pleading  and  can- 
not give  relief  other  than  is  asked  for 
in  the  application  for  review  or  in  the- 
answer ;  35  but  an  order  to  terminate  the 
payments  may  be  made  although  the  ap- 
plication was  to  reduce  the  payments, 
where  a  further  request  to  terminate  was 
lodged  during  the  proceedings.36 

Findings  of  fact  of  the  arbitrator  up- 
on a  review  will  not  be  disturbed  if  there 
is  any  evidence  to  sustain  them.37 

The  county  court  judge  should  state 


SlVickers  v.  Evans  [1910]  A.  C.  (Eng.) 
444,  79  L.  J.  K.  B.  N.  S.  954,  103  L.  T.  N. 
S.  292,  26  Times  L.  R.  548,  54  Sol.  Jo.  651, 
3  B.  W.  C.  C.  403. 

The  question  to  be  determined  is,  what 
as  a  matter  of  fact  is  the  sum  which  the 
minor  workman  would  have  been  earning  at 
the  particular  date  had  he  not  been  injured. 
Malcolm  v.  Spowart  [1913]  W.  C.  &  Ins. 
Rep.  523,  50  Scot.  L.  R.  823,  6  B.  W.  C.  C. 
•856 

32  Clarke  v.  Knox    (1913)    6  B.  W.  C.  C. 
(Eng.)   695,  57  Sol.  Jo.  793. 

33  Gray  v.  Reed  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)   127,  108  L.  T.  N.  S.  53,  6  B.  W.  C. 

C.  43. 

The  burden  is  upon  the  employer  to  show 
such  change  of  circumstances  as  to  warrant 
the  termination  of  the  weekly  payments. 
Cory  v.  Hughes  [1911]  2  K.  B.  (Eng.) 
738,  80  L.  J.  K.  B.  N.  S.  1307,  105  L.  T.  N. 
S.  274,  27  Times  L.  R.  498,  4  B.  W.  C.  C. 
291 ;  New  Monckton  Collieries  v.  Toone 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  425,  109  L. 
T.  N.  S.  374,  57  Sol.  Jo.  753,  6  B.  W.  C.  C. 
660. 

In  the  case  of  a  payment  fixed  by  a 
recorded  memorandum  of  agreement,  the 
burden  is  on  the  employer  to  prove  affirm- 
atively that  the  workman  had  recovered 
from  his  injuries.  Quinn  v.  M'Callum 
[1909]  S.  C.  227,  46  Scot.  L.  R.  141. 

34M'Ghee  v.  Summerlee  Iron  Co.  [1911] 
S.  C.  870,  48  Scot.  L.  R.  807,  4  B.  W.  C.  C. 
424. 

35  A  county  court  judge,  who  has  been 
asked  by  the  workman  for  the  restoration 
of  a  weekly  payment,  is  not  entitled  upon 
such  application  to  terminate  the  employ- 
ers' liability  where  the  employers  have  not 
asked  for  such  termination  in  their  answer. 
Henshaw  v.  Fielding  (1914)  7  B.  W.  C.  C. 
(Eng.)  650. 

38  Where  the  application  is  for  the  reduc- 
tion of  compensation  the  county  court  judge 
L.R.A.1916A. 


is  justified  in  terminating  it,  ^vhere  the 
whole  of  the  applicant's  evidence  is  directed 
towards  making  a  case  for  terminating  the 
payments,  and  the  workman's  medical  evi- 
dence that  the  workman  is  not  fit  for 
continuous  work  is  directed  to  and  traverses 
that  issue,  and  a  further  request  for  ter- 
mination is  lodged  during  the  proceedings. 
Higgs  v.  Unicume  [1913]  1  K.  B.  (Eng.) 
595,  82  L.  J.  K.  B.  N.  S.  369,  108  L.  T.  N. 
S.  169,  [1913]  W.  N.  36,  [1913]  W.  C.  & 
Ins.  Rep.  263,  6  B.  W.  C.  C.  205. 

37McNaughton  v.  Cunningham  [1910]  S. 
C.  980,  47  Scot.  L.  R.  781,  3  B.  W.  C.  C. 
576,  577;  Anderson  v.  Darngavil  Coal  Co. 
[1910]  S.  C.  456,  47  Scot.  L.  R.  342;  Ed- 
mondsons  v.  Parker  (1911)  107  L.  T.  N.  S. 
(Eng.)  339,  5  B.  W.  C.  C.  70;  Jones  v. 
Tirdonkin  Colliery  Co.  (1911)  5  B.  W.  C. 
C.  (Eng.)  3;  Westcott  &  L.  Lines  v.  Price 
[1912]  W.  C.  Rep.  (Eng.)  280,  5  B.  W.  C.  C. 
430;  Giardelli  v.  London  Welch  S.  S.  Co. 
(1914)  7  B.  W.  C.  C.  (Eng.)  550. 

The  reduction  of  the  weekly  compensa- 
tion, due  to  a  change  of  circumstances,  does 
not  present  a  question  of  law  reviewable 
by  the  court  of  appeal.  Taff  Vale  R.  Co. 
v.  Lane  (1910)  3  B.  W.  C.  C.  (Eng.)  297. 

Where  there  is  evidence  to  support  the 
findings  of  the  county  court  judge  as  to 
the  condition  of  the  workman  the  court 
will  not  interfere,  although  it  may  well 
be  that  if  the  county  court  judge  had 
taken  the  opposite  view  the  court  could 
not  possibly  have  interfered  with  his  find- 
ing. Waal  v.  Steel  (1915)  112  L.  T.  N.  S. 
(Eng.)  846. 

The  decision  of  the  arbitrator  that  a 
workman  who  had  lost  the  sight  of  one 
eye  by  an  accident  had  recovered  from  his 
incapacity  and  was  fit  for  work  will  not 
be  disturbed,  where  there  was  evidence 
tending  to  support  the  finding  and  it  was 
also  in  evidence  that  the  applicant  had 
been  employed  since  the  accident  at  his 


172 


WORKMEN'S  COMPENSATION. 


the  grounds  upon  which  he  arrived  at  his 
findings.88 

Several  other  decisions  on  this  section 
of  schedule  I.  but  involving  no  general 
principle  will  be  found  discussed  in  the 
note  below.39 

AS  to  the  effect  of  refusal  to  have  an 
operation  performed  upon  the  right  of 
review,  see  notes  26  et  seq.  ante,  139. 

fc.  Payment  of  lump  sum    (J  17). 

There  does  not  exist  anywhere  in  the 
act,  except  in  schedule  I.  f  17,  any  right 
to  award  a  lump  sum.40  Under  this  par- 
agraph the  employer's  right  to  redeem 
is  absolute ;  41  and  the  registrar  is  liable 
in  damages  to  the  employer  for  failure 
to  record  a  memorandum  of  agreement 
as  to  a  lump  sum,  where  it  is  signed  by 
the  agent  for  the  employer,  although 


form  53,  which  by  rule  56a  (4)  must  ac- 
company such  payment,  requires  that  it 
shall  be  signed  by  the  employers  or  their 
solicitors.42 

The  arbitrator  in  making  an  award  of 
a  lump  sum  has  no  power  to  make  an  op- 
tional award,43  and  he  has  no  jurisdic- 
tion over  an  application  for  the  reduction 
of  liability  for  weekly  payments  by  the 
payment  of.  a  lump  sum,  where  the  ap- 
plicant limits  the  lump  sum  to  a  certain 
amount.44 

There  is  no  provision  in  the  act  for  the 
review  of  an  award  of  a  lump  sum  in 
redemption  of  the  weekly  payment,  since 
f  16  applies  to  the  review  of  weekly  pay- 
ments only.46 

Unless  the  county  court  judge  is  sat- 
isfied that  the  incapacity  of  the  workman 
is  permanent,  he  is  not,  in  awarding  a 


former  work  at  the  old  rate  of  wages. 
Jones  v.  Anderson  (1914)  84  L.  J.  P.  C. 
N.  S.  (Eng.)  47,  112  L.  T.  N.  S.  225,  31 
Times  L.  R.  76,  [1914]  W.  N.  432,  59  Sol. 
Jo.  159,  [1915]  W.  C.  &  Ins.  Rep.  151,  8 
B.  W.  C.  C.  2. 

The  county  court  judge  was  justified  in 
increasing  from  a  nominal  amount  the  com- 
pensation of  a  man  who  had  lost  an  eye 
by  accident,  and  consequently  could  not 
do  his  work  properly  and  was  reduced  to 
the  status  of  a  casual  laborer.  Brown  v. 
Thornycroft  (1912)  5  B.  W.  C.  C.  (Eng.) 
386. 

38  Jones  v.  Tirdonkin  Colliery  Co.   (1911) 

5  B.  W.  C.  C.   (Eng.)   3. 

39  In  an  application  by  an  employer  for 
review   and    ending   of   a    weekly    payment 
made  under  agreement,  because  the  work- 
man  had   recovered   and  had  been  certified 
as    recovered    by    a     medical    practitioner 
selected   by   the  employer,  the  sheriff  sub- 
stitute was   not   entitled  to  refuse  the  al- 
lowance   of   proof   that    the    workman   had 
not  recovered.    Johnstone  v.  Cochran  (1904) 

6  Sc.   Seas.   Cas.   5th   series,   854,   41   Scot. 
L.  R.  644,  12  Scot.  L.  T.  175. 

Where  the  workman  made  a  definite  claim 
and  the  employer  admitted  his  liability  but 
claimed  that  the  workman  had  recovered 
his  earning  capacity  upon  a  fixed  date  and 
asked  the  court  to  terminate  the  workman's 
right  to  compensation,  the  proper  procedure 
was  for  the  sheriff  substitute  not  to  grant 
a  decerniture  for  the  admitted  liability  and 
to  hold  that  there  was  no  dispute  to  be 
submitted  to  arbitration,  but  to  make  a 
finding  that  the  workman  was  entitled  to 
compensation  to  the  amount  of  the  admitted 
liability,  and  then  to  take  up  the  question 
whether  the  compensation  was  to  be  ended 
or  not  at  the  date  fixed  by  the  employer. 
The  fact  that  the  workman  made  no 
claim  for  compensation  beyond  the  date 
mentioned  was  not  the  equivalent  of  a 
finding  that  his  right  to  compensation  had 
terminated.  Bowhill  Coal  Co.  v.  Malcolm 
L.R.A.1916A. 


(1909)  S.  C.  426,  46  Scot.  L.  R.  354,  2  B.  W. 
C.  C.  131. 

The  county  court  judge  was  justified  in 
finding  that  a  workman  was  still  entitled 
to  compensation,  where  the  workman  was 
suffering  from  nystagmus  and  the  county 
court  judge  found  that  his  susceptibility 
to  nystagmus  was  increased.  Garnant  An- 
thracite Collieries  v.  Rees  [1912]  3  K.  B. 
(Eng.)  372,  81  L.  J.  K.  B.  N.  S.  1189,  107 
L.  T.  N.  S.  279,  5  B.  W.  C.  C.  694. 

40  Mulholland  v.  Whitehaven  Colliery  Co. 
[1910]   2  K.  B.    (Eng.)   278,  79  L.  J.  K.  B. 
N.   S.  987,  26   Times  L.  R.  462,  102  L.  T. 
N.  S.  663,  3  B.  W.  C.  C.  317. 

41  In   Kendall   v.   Pennington    (1912)    106 
L.  T.  N.  S.  (Eng.)   817,  [1912]  W.  C.  Rep. 
144,  5  B.  W.  C.  C.  335,  the  court  held  that, 
as  the  employer's  right  to  redeem  is  abso- 
lute, the  county  court  judge  is  not  justified 
in   refusing   the    employer's   application   to 
redeem  upon  the  ground  that  it  would  not 
be  for  the  benefit  of  the  workman  to  have 
so  large  a  sum   paid  to  him  at  once,  and 
that    provision    is    made    in    clause    17    for 
investing   the    sum    for   the   benefit   of   the 
workman  in  such  a  case. 

42  Thompson    v.    Ferraro    (1913)    57    Sol. 
Jo.   (Eng.)  479,  6  B.  W.  C.  C.  461. 

« Calico  Printers'  Asso.  v.  Booth  [1913] 
3  K.  B.  (Eng.)  652,  82  L.  J.  K.  B.  N.  S.  985, 
[1913]  W.  C.  &  Ins.  Rep.  540,  109  L.  T.  N. 
S.  123,  6  B.  W.  C.  C.  551.  In  this  caae  the 
judge  made  an  award  that  a  weekly  pay- 
ment "may  be  redeemed." 

44  Castle  Spinning  Co.  v.  Atkinson  [1905] 
1  K.  B.  (Eng.)  336,  74  L.  J.  K.  B.  N.  S.  265r 
53  Week.  Rep.  360,  92  L.  T.  N.  S.  147,  21 
Times  L.  R.  192. 

45  Marshall    v.    Prince     [1914]    3    K.    B. 
(Eng.)   1047,  30  Times  L.  R.  654,  137  L.  T. 
Jo.  316,  58  Sol.  Jo.  721,  7  B.  W.  C.  C.  755. 
The  applicant   in   this  case   was   an   infant 
and  the  court  of  appeal  held  that  he  was 
in  no  better  position  than  an  adult  so  far 
as   procuring   a   review   of   an   award   of   a 
lump  sum  was  concerned. 


PAYMENT  OF  LUMP  SUM. 


173 


lump  sum,  to  be  guided  by  the  principle 
laid  down  in  f  17  of  the  first  schedule.46 
In  a  Scotch  case  it  was  held  that  a 
workman  who  had  lost  an  arm  was  per- 
manently incapacitated  within  the  mean- 
ing of  ^  17.47  But  it  has  been  pointed 
out  that  because  some  physical  injury  is 
permanent,  it  does  not  follow  that  the  in- 
capacity is  permanent.48  In  this  point  of 
view  the  amount  of  the  lump  sum  paid 


is  a  question  of  fact,  dependent  upon  the 
particular  circumstances  of  each  case.49 

In  an  application  for  the  redemption 
of  weekly  payments  the  amount  which 
the  employer  has  already  paid  is  irrele- 
vant.50 

In  the  note  below  will  be  found  some 
cases  dealing  with  questions  of  practice 
under  this  paragraph.51 


*6  Swannick  v.  Congested  Diet.  Board 
[1913]  W.  C.  &  Ins.  Rep.  96,  46  Ir.  Law 
Times,  253,  6  B.  W.  C.  C.  449. 

« National  Teleph.  Co.  v.  Smith  [1909] 
S.  C.  1363,  46  Scot.  L.  R.  988. 

48  In  fixing  the  lump  sum  by  which  the 
weekly  payments  of  an  injured  employee 
may  be  redeemed,  the  county  court  judge 
must  direct  his  mind  to  the  question 
whether  the  payments  may  be  increased 
or  diminished  in  the  future;  the  fact  that 
the  physical  injury  is  permanent  is  not 
conclusive  on  the  question  whether  the  in- 
capacity is  permanent.  Calico  Printers' 
Asso.  v.  Higham  [1912]  1  K.  B.  (Eng.) 
93,  [1911]  W.  N.  221,  28  Times  L.  R.  53, 
56  Sol.  Jo.  89. 

Cozens-Hardy,  M.  R.,  disagreed  with  the 
conclusion  of  Lord  Dundas  and  Lord  Ard- 
well  in  National  Teleph.  Co.  v.  Smith  [1909] 
S.  C.  1363,  46  Scot.  L.  R.  988,  2  B.  W.  C.  C. 
417,  that  where  a  man  was  in  receipt  of  half 
wages  in  consequence  of  total  incapacity 
the  75  per  cent  rule  must  be  applied,  and 
that  no  preliminary  inquiry  was  necessary 
to  determine  whether  the  incapacity  was 
permanent. 

»In  Staveley  Coal  &  I.  Co.  v.  Elson 
[1912]  W  C.  Rep.  (Eng.)  228,  5  B.  W.  C. 
C.  301,  the  court  of  appeal  held  that  the 
county  court  judge  misdirected  himself  when 
he  awarded  as  a  lump  sum  the  actuarial 
value  of  the  average  weekly  payments. 
The  county  court  judge  followed  National 
Teleph.  Co.  v.  Smith  (Scot.),  but,  as  it  was 
pointed  out  by  the  court  of  appeal,  that 
case  had  been  dissented  from  in  Calico 
Printers'  Asso.  v.  Higham  (Eng.)  supra. 

In  Pattinson  v.  Stevenson  (1900;  C.  C.) 
109  L.  T.  Jo.  (Eng.)  106,  2  W.  C.  C.  156, 
where  the  parties  had  agreed  upon  the 
actuarial  value  of  the  weekly  payment  for 
the  life  of  the  workman,  the  county  court 
judge  determined  that  that  value  was  sub- 
ject to  deduction  on  the  contingency  of  his 
condition  improving  and  in  respect  to  his 
dying  at  an  earlier  age  than  the  average 
human  life.  This  decision  was  subsequently 
affirmed  by  the  court  of  appeal  on  June 
30,  1900. 

In  Grant  v.  Conroy  (1904;  C.  C.)  6  W. 
C.  C.  (Eng.)  153,  a  lump  sum  of  £250  was 
awarded  a  man  forty  years  of  age,  both 
of  whose  hands  had  been  severely  and 
probably  permanently  injured,  who  had 
been  receiving  one  pound  a  week  as  com- 
pensation. 

50  In   Victor    Mills    v.    Shakleton    [1912] 
1  K.  B.  (Eng.)  22  [1911]  W.  N.  197,  81  L. 
J.  K.  B.  N.  S.  34,  105  L.  T.  N.  S.  613,  it  ' 
L.R.A.1916A. 


was  held  that  under  §  13  of  the  first 
schedule  (act  of  1897)  it  was  error  for  the 
county  court  judge,  in  fixing  the  lump  sum, 
to  estimate  the  damages  which  the  work- 
man would  have  been  awarded  .at  the  time 
of  the  accident,  and  deduct  therefrom  the 
payments  received  by  him,  and  to  award- 
the  balance;  all  the  county  court  judge  has 
to  do  in  such  a  case  is  to  assess  the  redemp- 
tion price  of  the  weekly  payments  payable 
under  the  award.  Cozens-Hardy,  M.  R., 
took  the  view  that  such  sums  were  recover- 
able in  a  separate  action. 

Victor  Mills  v.  Shakleton  (Eng.)  was 
followed  by  Dutka  v.  Bankhead  Mines 
(1915)  23  D.  L.  R.  (Alberta)  273. 

51  It  was  error  for  the  county  court  judge 
to  direct  the  employer  to  pay  the  cost, 
where  the  workman  had  agreed  to  accept 
a  lump  sum  in  discharge  of  the  employer's 
liability  and  the  matter  only  came  before 
the  court  because  the  registrar  was  dis- 
satisfied as  to  the  amount  of  the  commuta- 
tion, which  amount,  however,  was  held  to 
be  satisfactory  by  the  judge.  Kierson  v. 
Thompson  [1913]  1  K.  B.  (Eng.)  587,  82 
L.  J.  K.  B.  N.  S.  920,  108  L.  T.  N.  S.  237, 
29  Times  L.  R.  205,  57  Sol.  Jo.  226,  [1913] 
W.  N.  12,  [1913]  W.  C.  &  Ins.  Rep.  140, 
6  B.  W.  C.  C.  60. 

Where  the  county  court  judge  denied  the 
application  of  the  workman  to  review  and 
increase  the  amount  of  compensation,  and 
the  judge  immediately  by  the  consent  of 
the  parties  took  up  the  application  of  the 
employers  for  payment  of  a  lump  sum  and 
made  an  award,  the  order  of  the  county 
court  judge  denying  a  review  cannot  be 
appealed  from,  since  the  application  to  re- 
deem was  by  consent,  although  the  pay- 
ments had  continued  for  about  four  months 
only.  Howell  v.  Blackwell  [1912]  W.  C. 
Rep.  (Eng.)  186,  5  B.  W.  0.  C.  293. 

On  an  application  by  the  employers  under 
schedule  I.  (17)  to  redeem  weekly  pay- 
ment, the  judge  properly  excluded  his  own 
personal  knowledge  gained  from  other 
sources.  Calico  Printers'  Asso.  v.  Booth 
29  Times  L.  R.  664,  57  Sol.  Jo.  662,  [1913] 
3  K.  B.  (Eng.)  652,  82  L.  J.  K.  B.  N.  S.  985, 
6  B.  W.  C.  C.  556. 

Where  an  employer,  who  was  paying 
compensation,  applied  for  a  diminution  or 
redemption  of  a  weekly  payment,  he  was 
entitled,  after  the  workman  had  answered 
and  objected  to  it  and  before  the  matter 
came  on  for  jury,  to  withdraw  the  applica- 
tion so  far  as  it  related  to  the  question 
of  redemption.  Gotobed  v.  Petchell  [1914] 
2  K.  B.  (Eng.)  36,  83  L.  J.  K.  B.  N.  S. 


174 


WORKMEN'S  COMPENSATION. 


I.  Set-offs    against    -weekly    payments 

a  19). 

The  purpose  of  the  act  is  to  give  to 
the  workman  for  his  subsistence  the  full 
amount  of  the  weekly  payments.62 
Money  paid  in  weekly  payments  in  ex- 
cess of  what  is  legally  required  to  be 
paid  cannot  be  offset  against  future  pay- 
ments.53 

An  allowance  of  coal  given  by  custom 
to  all  miners  when  incapacitated  is  not 
to  be  regarded  as  compensation,  this 
being  his  due  under  his  contract  of  em- 
ployment.54 But  the  employer  may,  un- 
der an  agreement  with  the  workman,  de- 
duct the  amount  of  weekly  rent  which 
the  workman  as  the  employer's  tenant 
owed  him,  from  the  amount  of  the  week- 
ly payment.55 

XXI.  Arbitration    (sched.  II.) . 
a.  Text  of  schedule  II. 

Second  Schedule.  Arbitration,  etc.  (1) 
For  the  purpose  of  settling  any  matter 
which  under  this  act  is  to  be  settled  by 
arbitration,  if  any  committee,  represen- 
tative of  an  employer  and  his  workmen, 
exists  with  power  to  settle  matters  under 
this  act  in  the  case  of  the  employer  and 
workmen,  the  matter  shall,  unless  either 
party  objects  by  notice  in  writing  sent 
to  the  other  party  before  the  committee 
meet  to  consider  the  matter,  be  settled 
by  the  arbitration  of  such  committee,  or 
be  referred  by  them  in  their  discretion 
to  arbitration  as  hereinafter  provided. 

(2)  If  either  party  so  objects,  or  there 
is  no  such  committee,  or  the  committee  so 


refers  the  matter,  or  fails  to  settle  the 
matter  within  six  months  from  the  date 
of  the  claim,  the  matter  shall  be  settled 
by  a  single  arbitrator  agreed  on  by  the 
parties,  or,  in  the  absence  of  agreement, 
by  the  judge  of  the  county  court,  accord- 

!  ing  to  the  procedure  prescribed  by  rules 

i  of  court. 

(3)  In  England  the  matter,  instead  of 
j  being  settled  by  the  judge  of  the  county 

court,  may,  if  the  Lord  Chancellor  so  au- 
thorizes, be  settled,  according  to  the  like 
procedure,  by  a  single  arbitrator  appoint- 
ed by  that  judge,  and  the  arbitrator  so 
appointed  shall,  for  the  purposes  of  this 
'  act,  have  all  the  powers  of  that  judge. 

(4)  The  arbitration  act  of  1889  shall 
I  not  apply  to  any  arbitration  under  this 
!  act;   but   a   committee  or  an  arbitrator 
1  may,  if  they  or  he  think  fit,  submit  any 

question  of  law  for  the  decision  of  the 
judge  of  the  county  court,  and  the  deci- 
I  sion  of  the  judge  on  any  question  of 
law,  either  on  such  submission,  or  in  any 
case  where  he  himself  settles  the  matter 
under  this  act,  or  where  he  gives  any  de- 
cision or  makes  any  order  under  this 
act,  shall  be  final,  unless  within  the  time 
and  in  accordance  with  the  conditions 
prescribed  by  rules  of  the  supreme  court 
either  party  appeals  to  the  court  of  ap- 
peal; and  the  judge  of  the  county  court, 
or  the  arbitrator  appointed  by  him,  shall, 
for  the  purpose  of  proceedings  under  this 
act,  have  the  same  powers  of  procuring 
the  attendance  of  witnesses  and  the  pro- 
duction of  documents  as  if  the  proceed- 
ings were  an  action  in  the  county  court. 

(5)  A  judge  of  county  courts  may,  if 


429,  110  L.  T.  N.  S.  453,  30  Times  L.  R. 
253,  58  Sol.  Jo.  249,  [1914]  W.  N.  33,  [1914] 
W.  C.  &  Ins.  Rep.  115,  7  B.  W.  C.  C.  109. 

An  agreement  for  the  redemption  of  the 
weekly  payment  by  a  lump  sum  should 
be  registered  by  the  registrar  upon  the 
application  of  either  party,  although  the 
agreement  has  been  executed,  the  money 
having  been  paid.  Rex  v.  Thetford  County 
Ct.  Registrar  (1915;  Div.  Ct.)  [1915]  1  K. 
B.  (Eng.)  224,  112  L.  T.  N.  S.  413,  84  L. 
J.  K.  B.  N.  S.  291,  [1915]  W.  C.  &  Ins.  Rep'. 
136,  [1914]  W.  N.  438,  8  B.  W.  C.  C.  276. 

52  An  employer  who  has  been  found  liable 
in  a  weekly  payment  under  the  act  to  a 
workman  cannot  set  off  against  that  pay- 
ment a  sum  awarded  to  him  as  expenses, 
against  the  workman,  in  an  application  for 
the  diminution  of  the  weekly  payment. 
Rosewell  Gas  Coal  Co.  v.  M' Vicar  (1904) 
7  Sc.  Sess.  Cas.  5th  series  (Scot.)  290.  The 
Lord  Justice  Clerk  said:  "The  object  of 
the  act  is  to  secure  that  an  injured  work- 
man shall  have  for  his  subsistence  the  sum 
awarded  to  him,  and  that  is  not  to  be 
trenched  upon  in  any  way." 

53Muller  v.  Batavier  Line  (1909;  C.  C.) 
126  L.  T.  Jo.  (Eng.)  96,  2  B.  W.  C.  C.  495. 
L.R.A.1916A. 


The  employer  is  not  entitled  to  set  off 
against  a  period  during  which  he  had  paid 
no  compensation  the  amount  which  he  had 
paid  for  a  previous  period  in  excess  of 
what  was  due  to  the  workman  as  com- 
pensation. Doyle  v.  Cork  Steam  Packet 
Co.  [1912]  W.  C.  Rep.  (Eng.)  203,  5  B.  W. 
C.  C.  350. 

Where  by  order  of  the  county  court  judge 
the  amount  of  compensation  has  been  duly 
reduced  as  of  a  prior  date,  the  employer 
is  not  entitled  to  treat  the  excess  which 
he  paid  between  the  time  when  the  re- 
duction was  to  take  place  and  the  date 
when  the  order  was  made  as  payments 
pro  tanto  in  advance  of  the  reduced  pay- 
ments. Hosegood  v.  Wilson  [1911]  1  K» 

B.  (Eng.)   30,  80  L.  J.  K.  B.  N.  S.  519,  103 
L.  T.  N.  S.  616,  27  Times  L.  R.  88,  4  B.  W. 

C.  C.  30,   [1910]  W.  N.  242. 

54  Simmonds  v.  Stourbridge  Brick  &  Fire 
Clay  Co.   [1910]   2  K.  B.   (Eng.)   269,  79  L. 
J.  K.  B.  N.  S.  997,  102  L.  T.  N.  S.  732,  2& 
Times  L.  R.  430. 

55  Brown   v.   South   Eastern   &   C.  R.   Co. 
(1910)  3  B.  W.  C.  C.   (Eng.)  428. 


ARBITRATION. 


175 


he  thinks  fit,  summon  a  medical  referee 
to  sit  with  him  as  an  assessor. 

(6)  Rules  of  court  may  make  provision 
for  the  appearance,   in  any  arbitration 
under  this  act,  of  any  party  by  some 
other  person. 

(7)  The  costs  of  and  incidental  to  the 
arbitration    and    proceedings    connected 
therewith  shall  be  in  the  discretion  of  the 
committee,   arbitrator,   or   judge   of   the 
county   court,   subject   as   respects   such 
judge   and    an   arbitrator   appointed   by 
him  to  rules  of  court.    The  costs,  wheth- 
er before  a  committee  or  an  arbitrator  or 
in  the  county  court,  shall  not  exceed  the 
limit  prescribed  by  rules  of  court,  and 
shall  be  taxed  in  manner  prescribed  by 
those  rules,  and  such  taxation  may  be  re- 
viewed by  the  judge  of  the  county  court. 

(8)  In  the  case  of  the  death,  or  refusal 
or  inability  to  act,  of  an  arbitrator,  the 
judge  of  the  county  court  may,  on  the 
application  of  any  party,  appoint  a  new 
arbitrator. 

(9)  Where  the  amount  of  compensa- 
tion under  this  act  has  been  ascertained, 
or  any  weekly  payment  varied,  or  any 
other  matter  decided  under  this  act,  ei- 
ther by  a  committee  or  by  an  arbitrator 
or  by  agreement,  a  memorandum  thereof 
shall  be  sent,   in  manner  prescribed  by 
rules    of    court,    by    the    committee    or 
arbitrator,  or  by  any  party  interested,  to 
the  registrar  of  the  county  court,  who 
shall,    subject    to    such   rules,   on    being 
satisfied   as   to    its   genuineness,   record 
such  memorandum  in  a  special  register 
without  fee,  and  thereupon  the  memor- 
andum   shall    for   all    purposes    be    en- 
forceable as  a   county  court  judgment. 
Provided  that — (a)  no  such  memorandum 
shall  be  recorded  before  seven  days  after 
the  despatch  by  the  registrar  of  notice 
to  the  parties  interested ;  and — 

(b)  Where  a  workman  seeks  to  record 
a  memorandum  of  agreement  between  his 
employer  and  himself  for  the  payment 
of  compensation  under  this  act,  and  the 
employer,   in   accordance   with   rules   of 
court,  proves  that  the  workman  has  in 
fact  returned  to  work  and  is  earning  the 
same  wages  as  he  did  before  the  acci- 
dent,  and  objects   to   the   recording   of 
such    memorandum,     the    memorandum 
shall  only  be  recorded,  if  at  all,  on  such 
terms  as  the  judge  of  the  county  court, 
under  the  circumstances,  may  think  just ; 
and — 

(c)  The  judge  of  the  county  court  may 
at  any  time  rectify  the  register;  and — 

(d)  Where  it  appears  to  the  registrar 
of  the  county  court,  on  any  information 
which   he   considers   sufficient,    that   an 
agreement   as   to   the   redemption   of   a 
L.Px.A.19]6A. 


weekly  payment  by  a  lump  sum,  or  an 
agreement  as  to  the  amount  of  compen- 
sation payable  to  a  person  under  any 
legal  disability,  or  to  dependents,  ought 
not  to  be  registered  by  reason  of  the  in- 
adequacy of  the  sum  or  amount,  or  by 
reason  of  the  agreement  having  been  ob- 
tained by  fraud  or  undue  influence,  or 
other  improper  means,  he  may  refuse  to 
record  the  memorandum  of  the  agreement 
sent  to  him  for  registration,  and  refer 
the  matter  to  the  judge,  who  shall,  in  ac- 
cordance with  rules  of  court,  make  such 
order  (including  an  order  as  to  any  surn 
already  paid  under  the  agreement)  as 
under  the  circumstances  he  may  think 
just;  and — 

(e)  The  judge  may,  within  six  months 
after  a  memorandum  of  an  agreement 
as  to  the  redemption  of  a  weekly  pay- 
ment by  a  lump  sum,  or  of  an  agreement 
as  to  the  amount  of  compensation  pay- 
able to  a  person  under  any  legal  disabil- 
ity, or  to  dependents,  has  been  recorded 
in  the  register,  order  that  the  record  be 
removed  from  the  register  on  proof  to 
his  satisfaction  that  the  agreement  was 
obtained  by  fraud  or  undue  influence  or 
other  improper  means,  and  may  make 
such  order  (including  an  order  as  to  any 
sum  already  paid  under  the  agreement) 
as  under  the  circumstances  he  may  think 
just. 

(10)  An  agreement  as  to  the  redemp- 
tion of  a  weekly  payment  by  a  lump  sum, 
if  not  registered  in  accordance  with  this 
act,  shall  not,  nor  shall  the  payment  of 
the  sum  payable  under  the  agreement, 
exempt  the  person  by  whom  the  weekly 
payment  is  payable  from  liability  to  con- 
tinue to  make  that  weekly  payment,  and 
an  agreement  as  to  the  amount  of  com- 
pensation to  be  paid  to  a  person  under  a 
legal  disability,  or  to  dependents,  if  not 
so  registered,  shall  not,  nor  shall  the  pay- 
ment of  the  sum  payable  under  the  agree- 
ment, exempt  the  person  by  whom  the 
compensation   is   payable   from   liability 
to   pay   compensation,   unless,   in   either 
case,  he  proves  that  the  failure  to  regis- 
ter was  not  due  to  any  neglect  or  default 
on  his  part. 

(11)  Where  any  matter  under  this  act 
is  to  be  done  in  a  county  court,  or  by,  to, 
or  before   the  judge  or  registrar  of  a 
county  court,  then,  unless  the  contrary 
intention  appear,  the  same  shall,  subject 
to  rules  of  court,  be  done  in,  or  by,  to, 
or  before  the  judge  or  registrar  of,  the 
county  court  of  the  district  in  which  all 
the  parties  concerned  reside,  or,  if  they 
reside  in  different  districts,  the  district 
prescribed    by   rules   of    court    without 


176 


WORKMEN'S  COMPENSATION. 


prejudice  to  any  transfer  in  manner  pro- 
vided by  rules  of  court. 

(12)  The  duty  of  a  judge  of  county 
courts  under  this  act,  or  in  England  of 
an  arbitrator   appointed  by   him,   shall, 
subject  to  rules  of  court,  be  part  of  the 
duties  of  the  county  court,  and  the  offi- 
cers of  the  court  shall  act  accordingly, 
and  rules  of  court  may  be  made  both  for 
any  purpose  for  which  this  act  authorized 
rules  of  court  to  be  made,  and  also  gen- 
erally for  carrying  into  effect  this   act 
so  far  as  it  affects  the  county  court,  or 
an  arbitrator  appointed  by  the  judge  of 
the  county  court,  and  proceedings  in  the 
county  court  or  before  any  such  arbitra- 
tor, and  such  rules  may,  in  England,  be 
made  by  the  five  judges  of  county  courts 
appointed  for  the  making  of  rules  under 
§   164  of   the   county   courts   act   1888, 
and  when  allowed  by  the  Lord  Chancel- 
lor, as  provided  by  that  section,  shall 
have  full  effect  without  any  further  con- 
sent. 

(13)  No  court  fee,  except  such  as  may 
be  prescribed  under  f  (15)   of  the  first 
schedule  to  this  act,  shall  be  payable  by 
any  party  in  respect  of  any  proceedings 
by  or  against  a  workman  under  this  act 
in  the  court  prior  to  the  award. 

(14)  Any  sum  awarded  as  compensa- 
tion shall,  unless  paid  into  court  under 
this  act,  be  paid  on  the  receipt  of  the  per- 
son  to   whom   it  is  payable  under   any 
agreement  or  award,  and  the  solicitor  or 
agent  of  a  person  claiming  compensa- 
tion under  this  act  shall  not  be  entitled 
to  recover  from  him  any  costs  in  respect 
of  any  proceedings  in  an  arbitration  un- 
der this  act,  or  to  claim  a  lien  in  respect 
of  such  costs  on,  or  deduct  such  costs 
from,    the    sum    awarded    or   agreed    as 
compensation,  except  such  sum  as  may 
be  awarded  by  the  committee,  the  arbi- 
trator or  the  judge  of  the  county  court, 
on  an  application  made  either  by  the  per- 
son   claiming    compensation,    or    by    his 
solicitor    or    agent,     to     determine    the 
amount  of  costs  to  be  paid  to  the  solici- 
tor or  agent,  such  sum  to   be  awarded 
subject  to  taxation  and  to  the  scale  of 
costs  prescribed  by  rules  of  court. 

(15)  Any    committee,    arbitrator,    or 
judge  may,  subject  to  regulations  made 
by  the  Secretary  of  State  and  the  Treas- 
ury, submit  to  a  medical  referee  or  re- 
port any  matter  which   seems  material 
to  any  question  arising  in  the  arbitra- 
tion. 

(16)  The  Secretary  of  State  may,  by 
order,  either  unconditionally  or  subject 
to  such  conditions  or  modifications  as  he 
L.R.A.1916A. 


may  think  fit,  confer  on  any  committee 
representative  of  an  employer  and  his 
workmen,  as  respects  any  matter  in 
which  the  committee  act  as  arbitrators, 
or  which  is  settled  by  agreement  sub- 
mitted to  and  approved  by  the  com- 
mittee, all  or  any  of  the  powers  conferred 
by  this  act  exclusively  on  county  courts 
or  judges  of  county  courts,  and  may  by 
the  order  provide  how  and  to  whom 
the  compensation  money  is  to  be  paid 
in  cases  where,  but  for  the  order,  the 
money  would  be  required  to  be  paid 
into  court,  and  the  order  may  exclude 
from  the  operation  of  provisos  (d)  and 
(e)  of  Tf  (9)  of  this  schedule  agreements 
submitted  to  and  approved  by  the  com- 
mittee, and  may  contain  such  incidental, 
consequential,  or  supplemental  provisions 
as  may  appear  to  the  Secretary  of  State 
to  be  necessary  or  proper  for  the  pur- 
poses of  the  order. 

(17)  In  the  application  of  this  sched- 
ule^  to    Scotland — (a)      "County    court 
judgment"  as  used  in  f  (9)  of  this  sched- 
ule, means  a  recorded  decree  arbitral; 

(b)  Any  application  to  the  sheriff  as 
arbitrator  shall  be  heard,  tried,  and  de- 
termined summarily  in  the  mariner  pro- 
vided by  §  52  of  the  sheriff  courts  (Scot- 
land)   act  1876,  save  only  that  parties 
may  be  represented  by  any  person  au- 
thorized in  writing  to  appear  for  them, 
and   subject   to   the   declaration   that   it 
shall  be  competent  to  either  party,  with- 
in the  time  and  in  accordance  with  the 
conditions  prescribed  by  act  of  sederunt, 
to  require  the  sheriff  to  state  a  case  on 
any  question  of  law  determined  by  him, 
and   his   decision   thereon   in   such   case 
may  be  submitted  to  either  division  of 
the  court  of  session,  who  may  hear  and 
determine   the   same,   and   remit   to   the 
sheriff  with  instruction  as  to  the  judg- 
ment to  be  pronounced,  and  an  appeal 
shall  lie  from  either  of  such  divisions  to 
the  House  of  Lords; 

(c)  Paragraphs  (3),  (4),  and  (8)  shall 
not  apply. 

(18)  In  the  application  of  this  schedule 
to  Ireland  the  expression  "judge  of  the 
county  court"  shall  include  the  recorder 
of  any  city  or  town,  and  an  appeal  shall 
lie  from  the  court  of  appeal  to  the  House 
of  Lords. 

[It  has  not  been  deemed  necessary  to 
give  any  of  the  text  of  the  second  sched- 
ule of  the  original  act;  but  it  may  be 
noted  that,  for  the  most  part,  the  later 
act  follows  along  the  lines  of  the  earlier 
one.] 


COMMITTEE'S  REPRESENTATIVE— FUNCTIONS  OF  ARBITRATORS.       177 


b.  Construction    of    these    provisions. 

1.  Functions   of  committee's  represen- 
tative of  the  employer  and  his  work- 
men. 

The  appointment  of  a  committee  rep- 
resentative of  the  employer  and  his  work- 
men, such  as  is  spoken  of  in  schedule  II. 
f  1,  and  an  award  made  by  it,  do  not 
constitute  a  contracting  out  of  the  act, 
nor  a  scheme  which  must  be  certified 
under  $  3  of  the  act.  This  procedure  is 
a  part  of  the  machinery  provided  for  the 
purpose  of  giving  effect  to  the  act.66  If 
there  is  such  a  committee  and  its  juris- 
diction is  not  excluded  as  provided  for 
in  that  paragraph,  namely,  by  either 
party  objecting  in  writing  before  the 
committee  meets  to  consider  the  matter, 
such  committee  has  full  jurisdiction  to 
the  exclusion  of  the  county  court  and 
everybody  else,  unless  the  committee  re- 
fers the  matter  to  arbitration,  or  fails 
to  settle  it  within  six  months  from  the 
date  of  the  claim.57  Although  the  award 
may  be  made  by  such  a  committee,  an  ap- 
plication for  review  is  to  be  made  to  the 
county  court  judge.68 

2.  Powers  and  functions  of  arbitrators. 

Under  the  second  paragraph  of  the 
second  schedule,  the  county  court  judge, 


sitting  as  an  arbitrator,  has  only  the 
power  of  arbitrator.69  Arbitration  under 
the  act  is  not  controlled  by  the  general 
arbitration  act,  and  the  powers  of  the 
arbitrator  are  not  the  same  as  those  of  an 
arbitrator  appointed  under  that  act;  his 
powers  are  defined  by  the  compensation 
act  itself.60  He  has  no  power  to  order 
interrogatories  to  be  taken ; 61  nor  to 
delegate  to  another  the  duty  of  taking 
evidence ;  62  nor  to  grant  a  new  trial.63 

The  power  of  the  arbitrator  does  not 
go  beyond  determining  the  liability  to 
pay  compensation  and  the  amount  there- 
of.64 But  he  is  acting  within  his  juris- 
diction in  determining  the  question 
whether  an  applicant  signed  the  dis- 
charge under  the  mistaken  belief  that 
it  was  merely  a  receipt  for  past  compen- 
sation, since  this  is  the  question  "as  to 
the  liability  to  pay  compensation,"  with- 
in subsec.  3  of  §  1  of  the  act.65  Neither 
the  registrar  nor  the  county  court  judge 
qua  judge  can  deal  with  the  question  of 
incapacity,  since  that  is  the  duty  of  the 
arbitrator.66 

Different  rules  prevail  under  some  of 
the  colonial  acts :  Thus,  a  judge  of  the 
district  court,  acting  as  arbitrator  under 
the  Alberta  act,  has  power  to  direct  the 
issue  of  a  commission  to  take  the  evi- 
dence of  witnesses  in  order  that  the 


66  Mulholland  v.  Whitehaven  Colliery  Co. 
[1910]  2  K.  B.  (Eng.)  278,  79  L.  J.  K.  B. 
N.  S.  987,  26  Times  L.  R.  462,  102  L.  T. 
N.  S.  663,  3  B.  W.  C.  C.  317. 

57  (Eng.)   Ibid. 

58  In    Rex    v.    Templer    [1912]    1    K.    B. 
(Eng.)    351,  81  L.  J.  K.  B.  N.  S.  399,  105 
L.  T.  N.  S.  905,  28  Times  L.  R.  146,  132  L. 
T.  Jo.  203,  5  B.  W.  C.  C.  242,  the  divisional 
court  held  that  the  county  court  judge  had 
jurisdiction   to  entertain  an   application  to 
review  weekly  payments,  being  made  under 
an  award  by  a  committee  representing  the 
employers  and  workmen,  which  award  pre- 
sumed   that    the    workman    could    perform 
"light   labor"  which   was  furnished  by  the 
employer,   but   which    the    applicant   found 
himself  unable   to  perform.     This   was   af- 
firmed by  the  court  of  appeal  in  [1912]   2 
K.  B.  444,  81  L.  J.  K.  B.  N.  S.  805,  [1912] 
W.  C.  Rep.  209,  5  B.  W.  C.  C.  454,  106  L.  T. 
N.  S.  855,  [1912]  W.  N.  135,  28  Times  L.  R. 
410,  56  Sol.  Jo.  501. 

59  Mountain  v.  Parr  [1899]  1  Q.  B.  (Eng.) 
805,  68  L.  J.  Q.  B.  N.  S.  447,  47  Week.  Rep. 
353,  80  L.  T.  N.  S.  342,  15  Times  L.  R.  262; 
Sutton  v.  Great  Northern  R.  Co.   [1909]   2 
K.  B.  (Eng.)  791,  79  L.  J.  K.  B.  N.  S.  81, 
101  L.  T.  N.  S.  175,  2  B.  W.  C.  C.  428. 

60  Sutton  v.  Great  Northern  R.  Co.  (Eng.) 
supra. 

61  (Eng.)  Ibid. 

62  Taylor  v.  Cripps  [1914]  3  K.  B.  (Eng.) 
989,  83  L.  J.  K.  B.  N.  S.  1538,  7  B.  W.  C.  C. 
623,  30  Times  L.  R.  616. 


63  Mountain  v.  Parr  (Eng.)  supra. 

64  An    arbiter    is    not    entitled    to    pro- 
nounce an  order  the  validity  of  which  will 
depend   on   the   workman's   condition    at   a 
future   date.     Allen   v.    Spowart    (1906)    8 
Sc.   Sess.   5th  series    (Scot.)    811. 

A  sheriff  acting  as  arbitrator  under  the 
workmen's  compensation  act  may  compe- 
tently dismiss  a  claim  as  irrelevant,  with- 
out hearing  proof.  Coyne  v.  Glasgow  Steam 
Coasters  Co.  [1906-07]  S.  C.  (Scot.)  112. 

The  sheriff  as  arbiter  has  under  the 
act  no  power  to  enforce  an  agreement  by 
decerning  for  arrears  of  compensation  due 
under  it.  Colville  v.  Tigue  (1906)  8  Sc. 
Sess.  Cas.  5th  series  (Scot.)  179;  Malcolm 
v.  Bowhill  Coal  Co.  [1909]  S.  C.  (Scot.) 
426. 

65  Ellis    v.    Lochgelly    Iron    &    Coal    Co. 
[1909]  S.  C.  1278,  46  Scot.  L.  R.  960. 

Where  a  workman  signed  a  receipt,  the 
effect  of  which  he  did  not  understand,  which 
receipt  entitled  the  employers  to  terminate 
the  compensation  when  they  considered  that 
the  workman  had  recovered,  and  the  em- 
ployers objected  to  the  filing  of  a  memoran- 
dum in  the  ordinary  form,  the  workman  is 
entitled  to  arbitration  to  settle  the  matter 
in  dispute.  Brown  v.  Hunter  [1912]  S.  C. 
996,  49  Scot.  L.  R.  695,  5  B.  W.  C.  C.  589. 

66  Warren  v.  Roxburgh   (1912)    106  L.  T. 
N.  S.  (Eng.)  555,  5  B.  W.  C.  C.  263,  [1912] 
W.  C.  Rep.  306. 


L.R.A.1916A. 


12 


178 


WORKMEN'S  COMPENSATION. 


evidence  so  taken  may  be  used  before 
him  as  part  of  the  evidence  on  which  to 
base  his  award.67  And  the  British  Col- 
umbia arbitration  act  (B.  C.  Rev.  Stat. 
1897,  chap.  9)  applies  to  an  award  under 
the  workmen's  compensation  act  1902; 
and  a  motion  to  set  aside  the  award  may 
be  made  under  the  former  act.68  Under 
this  act  he  had  power  to  permit  amend- 
ments to  the  pleadings.69  But  he  does 
not  have  power  to  set  aside  a  judgment 
filed  in  his  court  by  the  duly  appointed 
arbitrator;  this  does  not  amount  to  a 
rectification  of  the  register.70  An  arbi- 
trator is  not  required  to  seal  his  award.71 
'  And  he  has  no  power  to  submit  a  ques- 
tion of  law  to  the  judge  after  he  has 
made  his  award.72 

3.  Appeals, 

An  appeal  from  the  decision  of  the 
county  court  judge  upon  points  of  law 
arising  under  the  act  lies  to  the  court  of 
appeal,  and  not  to  the  divisional  court.73 
But  if  the  county  court  judge  refuses  to 
entertain  jurisdiction  of  the  case  under 
the  act,  an  appeal  from  such  refusal  lies 


to  the  divisional  court,  and  not  to  the 
court  of  appeal.74 

Any  appeal  from  an  arbitrator  ap- 
pointed under  schedule  II.  1!  2  or  3, 
lies  to  the  county  court  judge,  and  not 
to  the  court  of  appeal.75  An  appeal 
lies  to  the  county  court  judge  qua  judge, 
from  an  order  of  the  registrar,  granting 
leave  to  issue  execution  in  a  case  where 
there  was  an  agreement  to  pay  compen- 
sation during  total  incapacity,  and  the 
employer  claimed  that  the  incapacity  had 
ceased.76 

The  time  for  appeal  from  an  award  of 
the  arbitrator  runs  from  the  time  the 
award  was  perfected.77  There  is  no  way 
by  which  a  workman  who  has  failed  to 
appeal  from  a  decision  for  an  award 
which  was  to  terminate  at  a  specific  time 
in  the  future  can,  after  such  time,  have 
his  case  reviewed.78  The  time  for  up- 
pealing  will  be  extended  where  the  coun- 
ty court  judge  had  not  furnished  the  ap- 
plicant with  a  copy  of  his  note  within  the 
time  allowed  for  appealing,  although  he 
had  been  requested  to  do  so  upon  several 
occasions.79 

The  court  of  appeal  has  no  jurisdiction 


67  Bodner    v.     West     Canadian     Colleries 
(1912)  8  D.  L.  R.   (Alberta)   462,  22  West. 
L.  Rep.   (Can.)   765. 

68  Disourdi    v.    Sullivan    Group    Min.    Co. 

(1909)  14  B.  C.  241  (writ  of  prohibition  re- 
fused). 

Subsection  3  of  §  2  of  the  workmen's 
compensation  act  expressly  confers  upon 
an  arbitrator  jurisdiction  to  settle  "any 
question  as  to  whether  the  employment  is 
one  to  which  this  act  applies;"  and  the  only 
way  to  review  the  arbitrator's  finding  there- 
on is  by  means  of  a  case  submitted  under 
§  4  of  the  second  schedule.  Basanta  v. 
Canadian  P.  R.  Co.  (1911)  16  B.  C.  304. 

69  Moore   v.   Crow's   Nest   Pass   Coal   Co. 

(1910)  15  B.  C.  391,  4  B.  W.  C.  C.  451. 

70  British    Columbia    Copper    Co.    v.    Mc- 
Kittrick   (1913)   18  B.  C.  129,  7  B.  W.  C.  C. 
1037. 

71  Re  Lewis  (1913)  18  B.  C.  329,  7  B.  W. 
C.  C.  1038. 

72  (B.  C.)  Ibid. 

73  An  appeal  from  an  order  made  by  the 
county  court  judge  upon  a  matter  referred 
to  him  by  the  registrar  under  sub-paragraph 
d  of  1J  9  of  the  second  schedule  lies  directly 
to  the  court  of  appeal,  and  not  to  the  di- 
visional court.     Bonney  v.  Hoyle   [1914]   2 
K.  B.   (Eng.)   257,  83  L.  J.  K.  B.  N.  S.  541, 
110  L.  T.  N.  S.  729,  136  L.  T.  Jo.  376,  30 
Times  L.  R.  280,  58  Sol.  Jo.  268,  [1914]  W. 
N.  43,  12  L.  G.  R.  358,  7  B.  W.  C.  C.  168. 

An  appeal  from  an  order  of  the  county 
court  judge,  which  wrongfully  delegates  his 
duty  of  taking  evidence,  lies  to  the  court  of 
appeal,  and  not  to  the  divisional  court. 
Taylor  v.  Cripps  [1914]  3  K.  B.  (Eng.) 
989,  83  L.  J.  K.  B.  N.  S.  1538,  7  B.  W.  C.  C. 
623,  30  Times  L.  R.  616. 
L.R.A.1916A. 


74  From   the   refusal   of   a   county   court 
judge   to   entertain   jurisdiction   of   an   ap- 
plication to  review  an  award   made  by  a 
committee,  an  appeal  lies  to  the  divisional 
court,  and  not  to  the  court  of  appeal.    How- 
arth  v.  Samuelson    (1906)    104  L.  T.  N.  S. 
(Eng.)   907,  4  B.  W.  C.  C.  287. 

In  Rex  v.  Templer  [1912]  1  K.  B.  (Eng.) 
351,  81  L.  J.  K.  B.  N.  S.  399,  105  L.  T.  N.  S. 
905,  28  Times  L.  R.  146,  132  L.  T.  Jo.  203, 
5  B.  W.  C.  C.  242,  an  appeal  from  the  de- 
cision of  the  county  court  judge  that  he 
had  no  jurisdiction  to  review  an  award  by 
a  committee  representing  the  employers  and 
workmen  was  passed  upon  by  the  divisional 
court. 

75  Gray  v.  Southend  Corp.  [1913]  W.  C.  & 
Ins.   Rep.    (Eng.)    393,   6  B.  W.   C.  C.   932. 
The  workman  applied  to  the  court  of  ap- 
peal to  extend  time  for  appealing  from  the 
ruling  of  an  appointed  arbitrator. 

The  only  method  of  reviewing  the  de- 
cision of  an  arbitrator  under  §  2  of  the 
2.1  schedule  is  by  submission  of  a  point 
of  law  to  the  county  judge,  no  appeal  ly- 
ing directly  to  the  court  of  appeal.  Gibson 
v.  Wormald  [1904]  2  K.  B.  (Eng.)  40,  73 
L.  J.  K.  B.  N.  S.  491,  68  J.  P.  382,  52  Week. 
Rep.  661,  91  L.  T.  N.  S.  7,  20  Times  L.  R. 
452. 

76  Warren  v.  Roxburgh   (1912)   106  L.  T 
N.  S.   (Eng.)   555,  5  B.  W.  C.  C.  263. 

77  Clayton    v.    Jones    Sewing    Mach.    Co. 
[1908]   W.  N.   (Eng.)   253. 

78  Evans  v.  Barrow  Haematite  Steel  Co. 
(1914)  7  B.  W.  C.  C.  (Eng.)  681. 

79  Rogers  v.  Metropolitan  Borough  (1913) 
7  B.  W.  C.  C.  (Eng.)  10. 


APPEALS. 


179 


over  questions  of  fact,80  unless  there  is 
no  evidence  to  sustain  the  finding  of  the 
arbitrator.81  An  appeal  on  the  points  of 
law,  not  taken  in  courts  below,  will  be 
dismissed.82  If  no  suspensory  award  is 
asked  for  at  the  arbitration  at  which  the 
compensation  is  terminated,  an  appeal 
upon  the  ground  that  such  an  award 
should  have  been  made  cannot  be  en- 
tertained.83 The  court  of  appeal  has  no 


jurisdiction  to  grant  a  declaration  of  lia- 
bility where  that  question  has  not  been 
passed  upon  by  the  county  court  judge.84 
A  new  trial  will  not  be  granted  to  the 
workman  on  the  ground  of  surprise, 
where  the  defense  was  set  up  at  the  hear- 
ing and  no  application  was  there  made 
for  an  adjournment.85 

The  limitations  of  the  powers  of  the 
court  of  appeal,  as  defined  by  Tf  (4),  are 


80  Nelson  v.  Allan  Bros.   [1913]  W.  C.  & 
Ins.  Rep.  532,  50  Scot.  L.  R.  820,  6  B.  W.  C. 
C.  853;  Powell  v.  Crow's  Nest  Pass  Coal  Co. 
(1915)  23  D.  L.  R.  (B.  C.)  57. 

The  condition  of  a  workman  is  a  ques- 
tion of  fact,  and  the  conclusion  of  the  arbi- 
ter will  not  be  disturbed.  Turner  v.  Bell 
(1910)  4  B.  W.  C.  C.  (Eng.)  63. 

An  appeal  will  not  lie  to  the  court  of 
appeal  under  fl  (4),  against  the  refusal  of 
the  county  court  judge  to  direct  insurers 
to  pay  insurance  money  into  the  Postoffice 
Savings  Bank,  in  accordance  with  the  pro- 
visions of  subs.  1  of  §  5  of  the  act.  Leech 
v.  Life  &  Health  Assur.  Asso.  [1901]  1  K. 

B.  (Eng.)    707,  70  L.  J.  K.  B.  N.   S.   544, 
49  Week.  Rep.  482,  84  L.  T.  N.  S.  414,  17 
Times  L.  R.  354. 

And  see  Rigby  v.  Cox  [1904]  1  K.  B. 
(Eng.)  358,  73  L.  J.  K.  B.  N.  S.  80,  68  J. 
P.  195,  52  Week.  Rep.  195,  89  L.  T.  N.  S. 
717,  20  Times  L.  R.  136  (no  appeal  against 
refusal  of  county  judge  to  direct  a  review 
of  taxation  of  costs). 

There  is  no  appeal  in  proceedings  under 
the  Alberta  act  from  the  district  court  judge 
except  on  questions  of  law.  Cargeme  v. 
Alberta  Coal  &  Min.  Co.  (1912)  6  D.  L.  R. 
(Alberta)  231,  22  West.  L.  Rep.  (Can.) 
68. 

Under  the  British  Columbia  act,  a  judge 
of  the  supreme  court  has  no  jurisdiction  to 
review  the  award  or  remit  it  to  the  ar- 
bitrator, in  the  absence  of  submission  by 
the  arbitrator  of  a  question  of  law.  Cozoff 
v.  Welch  (1914;  C.  C.)  7  B.  W.  C.  C.  (B.  C.) 
1064. 

Upon  the  hearing  of  an  interlocutory  ap- 
plication by  the  employer  for  an  order  that 
the  workman  should  give  particulars  as 
to  his  incapacity,  the  county  court  judge 
may  refuse  to  hear  the  managing  clerk  of 
the  solicitor  on  the  record,  although  the 
clerk  himself  is  an  admitted  solicitor. 
Rogers  v.  Metropolitan  Borough  [1914] 
W.  N.  (Eng.)  279,  58  Sol.  Jo.  656,  7  B.  W. 

C.  C.   432. 

The  filing  of  the  county  court  judge  that 
there  was  no  change  of  circumstances  upon 
which  a  review  could  be  based  shall  not  be 
disturbed  by  the  court  of  appeal,  if  there  is 
any  evidence  to  support  it.  Northeastern 
Marine  Enginering  Co.  v.  Davison  [1915] 
W.  C.  &  Ins.  Rep.  (Eng.)  65,  8  B.  W.  C.  C. 
248. 

81  Wheeler   v.   Dawson    [1913]    W.    C.    & 
Ins.  Rep.  (Eng.)  59,  5  B.  W.  C.  C.  645. 

The  court  has  no  jurisdiction  to  set  aside 
an  award  on  the  finding  of  fact  if  there  is 
any  evidence  to  support  such  finding,  how- 
L.R.A.1916A. 


ever  much  the  court  may  disagree  with  it. 
Woods  v.  Wilson  [1915]  W.  N.  (Eng.)  109, 
84  L.  J.  K.  B.  N.  S.  1067,  31  Times  L.  R. 
273,  59  Sol.  Jo.  348,  8  B.  W.  C.  C.  288. 

An  award  founded  solely  on  a  statement 
made  by  the  deceased  workman  to  a  fellow 
workman  as  to  the  cause  of  his  injury  will 
be  set  aside.  Wolsey  v.  Pethick  Bros.  (1908) 
1  B.  W.  C.  C.  (Eng.)  411. 

Where  a  medical  referee  found  that  the 
workman's  condition  was  such  that  he  was 
fit  to  return  to  his  work,  and  that  he  had 
recovered  from  his  incapacity,  and  the  sher- 
iff substitute  found  that  the  workman  had 
failed  to  discharge  the  onus  of  proving  that 
he  had  not  recovered  his  wage-earning  ca- 
pacity, and  ended  the  compensation,  the 
question  is  one  of  fact  for  the  arbitrator 
and  his  conclusion  will  not  be  disturbed  on 
appeal.  Jones  v.  Anderson  (H.  L.)  [1914] 
W.  N.  (Eng.)  432,  31  Times  L.  R.  76,  59 
Sol.  Jo.  159,  84  L.  J.  P.  C.  N.  S.  47,  112 
L.  T.  N.  S.  225.  The  Lord  Chancellor  ob- 
served that  the  reward  of  an  arbitrator 
under  the  act  would  only  be  interfered 
with  if  it  was  wrong  in  law,  or  was  made 
under  such  circumstances  that  the  House 
of  Lords  was  of  the  opinion  that  there  was 
no  evidence  upon  which  the  arbitrator  could 
act. 

Where  an  award  terminating  compensa- 
tion is  made  by  an  arbitrator,  the  House 
of  Lords  will  interfere  only  when  the  award 
is  wrong  in  law  on  its  face,  or  where, 
in  the  opinion  of  the  House,  there  is  no 
evidence  upon  which  the  arbitrator  could 
find  as  he  did.  (Eng.)  Ibid. 

82  Payne  v.  Clifton   (1910)   3  B.  W.  C.  C. 
(Eng.)  439. 

If  the  county  court  judge  committed  error 
in  allowing  a  medical  assessor  to  examine 
a  workman  in  his  private  room,  such  error 
cannot  be  considered  on  appeal,  in  the  ab- 
sence of  an  objection  made  at  the  time. 
Smith  v.  Foster  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  420,  6  B.  W.  C.  C.  499. 

83  Maunder  v.  Hancock    (1914)    7  B.  W. 
C.  C.  (Eng.)   648. 

84  Harlock  v.  The  Coquet  [1914]  W.  C.  & 
Ins.  Rep.  (Eng.)  75,  7  B.  W.  C.  C.  88. 

85  A  workman   is  not  entitled  to  a  new 
trial    upon    the   ground    of   surprise    where 
the  matter  was  brought  up  at  the  trial  and 
no   application   was   made   for   an   adjourn- 
ment, although  this  ground  was  not  raised 
on  the  case  as  it  was  launched,  or  covered 
by  the  answer  of  the  respondent.     Rocca  v. 
Jones   [1914]   W.  C.  &  Ins.  Rep.  (Eng.)   34, 
7  B.  W.  C.  C.  101,  6  N.  C.  C.  A.  624. 


180 


WORKMEN'S  COMPENSATION. 


indicated  by  the  following  remark  of 
Smith,  L.  J. :  "In  cases  under  this  act, 
as  in  appeals  generally  from  county 
courts,  questions  of  fact  are  not  the 
subject  of  appeal.  The  county  court 
judge  has  found  the  facts  and  has  rele- 
gated them  to  us,  and  we  have  to  decide 
any  question  of  law  arising  on  them."  88 
But,  under  the  local  court  act  of  West- 
ern Australia  (4  Edw.  VII.  No.  51),  an 
appeal  lies  to  the  supreme  court  on  all 
points,  both  of  law  and  of  fact,  and  the 
appeal  is  in  substance  a  rehearing.87 

It  is  the  duty  of  the  county  court 
judge  when  sitting  as  an  arbitrator  to 
state  the  grounds  of  his  decision,88  and 
the  court  of  appeal  will  remit  to  the 
county  court  judge,  to  be  reheard  by  him, 
a  case  in  which  the  note  made  by  the 
judge  does  not  show  whether  he  found 
that  the  accident  was  in  the  scope  of  the 
employment,  or  whether  there  was  wil- 
ful misconduct,  or  whether  the  injuries 
were  permanent.89  A  new  trial  must  be 
had  where  the  arbitrator  did  not  bring 
out  the  real  facts  in  the  case,  so  that 
the  court  of  appeal  could  determine  that 

86  Smith  v.  Lancashire  &  Y.  R.  Co.  [1899] 
1  Q.  B.  (Eng.)  141. 

87.  Federal  Gold  Mine  v.  Ennor  (1910;  H.  C. 
Austr.)  13  C.  L.  R.  (Austr.)  276. 

88  Marshall  v.  Price   (1914)   30  Times  L. 
R.   (Eng.)  248. 

The  proper  course  for  an  arbiter  in  stat- 
ing a  case  is  for  him  to  find  not  only  that 
the  deceased  met  his  death  by  accident 
while  in  the  employment  of  the  defendant, 
but  to  go  further  and  find  as  a  fact  whether 
or  not  that  accident  arose  out  of  and  in 
the  course  of  that  employment;  that  the 
deceased  was  guilty  or  not  guilty  of  serious 
or  wilful  misconduct  or  serious  neglect;  and 
then  allow  or  disallow  compensation,  as  the 
case  may  be.  Armstrong  v.  St.  Eugene 
Min.  Co.  (1908)  13  B.  C.  385,  1  B.  W.  C.  C. 
427. 

89  Walsh   v.   Scanlan    (1914)    48  Ir.  Law 
Times,  234,  8  B.  W.  C.  C.  414. 

90  Shaw     v.     Greenacres      Spinning     Co. 
(1915)  8  B.  W.  C.  C.  (Eng.)  35. 

9iRayman  v.  Fields  (1910)  102  L.  T 
N.  S.  (Eng.)  154,  26  Times  L.  R.  274,  3  B. 
W.  C.  C.  119;  Wright  v.  Sneyd  Collieries 
(1915)  84  L.  J.  K.  B.  N.  S.  (Eng.)  1332. 

92  Griffiths    v.    Wynnstay    Collieries    Co. 
(1909)  2  B.  W.  C.  C.  (Eng.)   450. 

There  must  be  a  new  trial  where  the 
county  court  judge  fails  to  make  note  of 
the  evidence  upon  which  he  forms  his  con- 
clusion. Taylor  v.  Ward  (1914)  7  B.  W. 
C.  C.  (Eng.)  441. 

93  Sambrook  v.  New  Sharlston  Collieries 
Co.  (1914)  7  B.  W.  C.  C.  (Eng.)  728. 

94  Where,  upon  the  hearing  of  an  appli- 
cation for  compensation,  the  employers  re- 
lied upon  three  defenses,  namely,  that  the 
accident  did  not  arise  out  of  the  employ- 
ment, that  the  workman  was  not  suffering 
L.R.A1916A. 


a  proper  award  had  been  made.90  The 
county  court  judge  must  make  notes  of 
the  evidence  or  the  case  will  not  be  con- 
sidered on  appeal,91  and  it  will  be  sent 
back  for  a  new  trial.92  There  must  be 
a  rehearing  where  the  county  court 
judge  makes  two  conflicting  findings, 
neither  of  which  is  supported  by  the  evi- 
dence,93 and  where  there  was  an  award 
in  favor  of  the  employer,  granted  upon 
points  upon  which  the  arbitrator  refused 
to  hear  the  counsel  for  the  applicant.94 

A  notice  of  appeal  from  the  dismissal 
of  an  application  to  review  must  state 
the  grounds  of  appeal ; 95  and  where 
there  is  no  point  of  law  in  the  notice  of 
appeal,  the  appeal  will  be  dismissed.96 

In  a  Scotch  case  decided  under  the 
act  of  1897,  it  was  held  that  the  acts  of 
the  sheriff  in  respect  to  the  recording  of 
the  agreement  were  ministerial  acts,  and 
therefore  not  appealable.97  But  a  dif- 
ferent rule  has  been  laid  down  in  the 
later  Scotch  cases,98  and  by  the  English 
courts.99  If  the  arbitrator  does  enter- 
tain a  petition  to  rectify  a  recorded 
agreement,  he  is  deemed  to  be  acting 

from  injury  by  accident,  but  as  the  result 
of  his  own  neglect,  and  third,  that  notice 
had  not  been  given  as  soon  as  practicable, 
and  the  deputy  judge  directed  counsel  for 
the  workman  to  deal  only  with  the  ques- 
tion of  notice  in  his  reply,  and  in  his  award 
the  deputy  judge  decided  the  first  two 
points  in  favor  of  the  employers,  but  did 
not  decide  the  third  question,  the  case  was 
sent  back  for  a  rehearing.  Silk  v.  Isle 
of  Thanet  Rural  Dist.  Council  (1913)  6 
B.  W.  C.  C.  (Eng.)  539. 

95  Barton  v.  Scott  (1910)  4  B.  W.  C.  C. 
(Eng.)  15. 

96Goff  v.  Airds  (1912)  5  B.  W.  C.  C. 
(Eng.)  277. 

97  In  Binning  v.  Easton   [1906-07]    S.  C. 
(Scot.)   406,  it  was  held  that  the  granting 
or  rejecting  by  a   sheriff  of  a  warrant  for 
the   recording  of  an   agreement   concerning 
the  payment  of  compensation  was  a  minis- 
terial  act,   and   consequently  could   not  be 
appealed. 

98  A  decision  of  the  sheriff  as  to  whether 
a  memorandum  of  an  agreement  fixing  the 
amount  of  compensation  shall  be  recorded 
is    a    decision    qua    arbiter,    not    merely    a 
ministerial    act,    and    therefore    subject    to 
appeal.    Addie  v.  Coakley  [1909]  S.  C.  545, 
46  Scot.  L.  R.  408,  distinguishing  Binning 
v.  Easton  (1906)  8  Sc.  Sess.  Cas.  5th  series 
(Scot.)    407, — a   decision   under   the   act   of 
1897. 

The  act  of  the  sheriff  in  recording  a 
memorandum  of  agreement  is  a  judicial 
act.  Brown  v.  Orr  [1909-10]  S.  C.  (Scot.) 
526. 

99  In  Johnston  v.  Mew,  L.  &  Co.    (1907) 
98  L.  T.  N.  S.   (Eng.)   517,  24  Times  L.  R. 
175,  1  B.  W.  C.  C.  133,  the  court  refused  to 
follow  the  decision  in  the  Binning  Case,  and 


COSTS. 


181 


judicially  and  his  judgment  is  subject 
to  review.1 

An  appeal  lies  under  schedule  2, 
clause  4,  of  the  act  of  1906,  from  a  de- 
cision of  the  county  court  judge  upon  the 
question  whether  an  applicant  was  bound 
by  the  provisions  of  a  certified  scheme 
entered  into  under  the  act  of  1897,  but 
not  recertified  after  the  passage  of  the 
act  of  1906.2  If  an  award  is  made  and 
one  of  the  parties  takes  advantage  of 
it,  it  cannot  thereafter  move  to  have  the 
award  set  aside.8  So,  where  an  appli- 
cant has  accepted  payments  of  compen- 
sation under  an  award,  he  cannot  sub- 
sequently appeal  from  a  part  of  the 
order  relating  to  the  costs.* 

A  few  cases  involving  the  admission 


and  sufficiency  of  evidence  in  the  pro- 
ceedings before  the  arbitrator  will  be 
found  in  the  note  below.5 

A  witness  giving  false  testimony  on 
an  arbitration  is  guilty  of  perjury,  since 
such  proceedings  are  judicial.6 
4.  Costs. 

See  also  ante,  82. 

Under  ^  7,  the  costs  to  be  awarded  are 
discretionary  with  the  committee,  arbi- 
trator, or  county  court  judge,  subject  to 
the  rules  of  the  court.  The  award  of 
costs  being  discretionary,  the  decisions 
in  regard  thereto  are  naturally  depend- 
ent to  a  great  extent  upon  the  partic- 
ular facts  and  circumstances  of  each 
case.7  Ordinarily  the  awarding  of  costs 
is  considered  as  a  question  for  the  arbi- 


it  was  held  that  the  order  of  a  county 
court  judge  to  register  an  agreement  was 
a  judicial  act,  and  therefore  appealable. 

The  decision  of  the  county  court  judge 
that  there  was  an  implied  agreement  be- 
tween the  parties,  and  his  direction  that  a 
memorandum  thereof  be  filed,  is  a  judicial 
proceeding  which  is  appealable.  Johnson 
v.  Mew,  L.  &  Co.  (Eng.)  supra. 

1  Hughes  v.  Thistle  Chemical  Co.   [1906- 
07]  S.  C.  (Scot.)  607. 

2  Moss  v.  Great  Eastern  R.  Co.   [1909]  2 
K.  B.  (Eng.)  274,  78  L.  J.  K.  B.  N.  S.  1048, 
100  L.  T.  N.  S.  747,  25  Times  L.  R.  466,  2 
B.  W.  C.  C.  168. 

3  Jones  v.  Winder    [1914]    W.   C.   &   Ins. 
Rep.  (Eng.)  38,  7  B.  W.  C.  C.  204.     In  this 
case   the   arbitrator   found   that   incapacity 
had    ceased,   but    made    an    award    for    the 
period  of  time  from  the  day  when  the  pay- 
ments had  ceased  to  the  date  when  he  found 
the  incapacity  to  have  ceased. 

4  Johnson    v.    Newton    Fire    Extinguisher 
Co.  [1913]  2  K.  B.   (Eng.)   Ill,  82  L.  J.  K. 
B.  N.  S.  541,  108  L.  T.  N.  S.  360,   [1913] 
W.  N.  37,  [1913]  W.  C.  &  Ins.  Rep.  352,  6 
B.  W.  C.  C.  202. 

Where  a  workman  had  received  compen- 
sation under  an  award  of  the  county  court 
judge  which  was  made  in  accordance  with 
an  offer  of  the  employer,  and  which  pro- 
vided that  a  certain  sum  per  week  should 
be  deducted  from  the  compensation  for  the 
costs  to  the  employer,  the  workman  cannot 
appeal  upon  the  ground  that  the  judge  had 
no  power  to  order  the  costs  to  be  deducted 
from  the  compensation.  Stroewer  v. 
Aerogen  Gas  Co.  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  578,  6  B.  W.  C.  C.  576. 

5  It  is  error  for  the  county  court  judge 
to   admit   statements   made   by   a   deceased 
workman   to  his   wife   as   to   the  cause   of 
injury  from  which  he  died,  although  he  only 
admitted  them  for  use,  if  necessary,  in  the 
appellate  court.     Smith  v.  Hardman  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  459,  6  B.  W.  C.  C. 
719. 

It  is  error  for  the  county  court  judge 
to  go  on  with  a  case  without  waiting  for 
depositions  necessary  for  the  employers  in 
their  case  from  witnesses  who  were  abroad. 
L.R.A.1916A. 


Jessop   v.    Maclay    (1911)    5    B.    W.    C.    C. 
(Eng.)    139. 

Statements  as  to  the  cause  of  the  in- 
jury, made  in  the  absence  of  the  employer 
by  a  workman  to  his  wife  and  to  his  doc- 
tor, are  not  admissible  to  prove  an  accident. 
Donaghy  v.  Ulster  Spinning  Co.  (1912)  46 
Ir.  Law  Times,  33,  [1912]  W.  C.  Rep.  183, 
as  cited  in  Butterworths'  Dig.  1912,  p.  432. 

The  appellate  court  will  not  open  up 
the  closed  proof  and  remit  to  the  arbiter 
to  take  evidence  of  a  witness  not  called 
at  the  hearing,  where  the  court  was  satis- 
fied with  the  case  stated  by  the  sheriff. 
Miller  v.  North  British  Locomotive  Co. 
[1909]  S.  C.  698,  46  Scot.  L.  R.  755,  2  B.  W. 
C.  C.  80. 

An  appeal  will  not  be  sustained  merely 
because  the  arbiter  admitted  evidence  after 
he  had  expressed  a  view  on  the  case.  Peters 
v.  The  Argol  (1912)  5  B.  W.  C.  C.  (Eng.) 
414. 

The  county  court  judge  cannot  dismiss 
a  workman's  application  for  arbitration  on 
the  ground  that  there  was  not  sufficient  evi- 
dence of  an  accident,  where  the  employer's 
answer  did  not  traverse  the  allegations  as 
to  the  accident.  Rudge  v.  Young  (1914^ 
7  B.  W.  C.  C.  (Eng.)  406. 

In  Johnson  v.  Oceanic  Steam  Nav.  Co. 
[1912]  W.  C.  Rep.  (Eng.)  162,  5  B.  W.  C.  C. 
322,  the  court  of  appeal  refused  to  pas* 
upon  the  question  whether  the  reports 
which  the  employer  had  concerning  the  acci- 
dent, furnished  to  the  employer  by  the  phy- 
sician, were  privileged. 

Error  in  the  admission  of  evidence  will' 
not  require  a  new  trial,  where  there  is  suffi- 
cient competent  evidence  to  support  the 
judge's  finding.  Beare  v.  Garrod  (1915)  & 

B.  W.  C.  C.  (Eng.)  474. 

6  Rex  v.  Crossley  (Ct.  Grim.  App.)  [1909] 
1  K.  B.  (Eng.)  411,  78  L.  J.  K.  B.  N.  S. 
299,  100  L.  T.  N.  S.  463,  25  Times  L.  R. 
225,  73  J.  P.  119,  53  Sol.  Jo.  214,  22  Cox, 

C.  C.  40. 

1 A  county  court  judge  has  no  jurisdiction 
to  give  to  the  register  a  direction  applicable 
to  all  cases,  that  the  costs  of  all  applica- 
tions to  review  the  weekly  payments  shall 
be  treated  as  though  the  application  were 


182 


WORKMEN'S  COMPENSATION. 


trator,  and  the  court  will  not  interfere 
in  the  absence  of  special  circumstances.8 
The  costs  should  not  be  awarded  to  the 


employer  where  the  applicant  secures  a 
greater  award  than  the  employer  had 
offered  him.9  And  costs  cannot  prop- 


a  mere  interlocutory  application  in  the  mat- 
ter of  the  original  arbitration,  and  not  as 
an  original  arbitration  or  proceeding. 
Rigby  v.  Cox  [1904]  2  K.  B.  (Eng.)  208,  73 
L.  J.  K.  B.  N.  S.  690,  91  L.  T.  N.  S.  72,  20 
Times  L.  R.  461,  68  J.  P.  385. 

No  costs  were  awarded  to  either  party 
where  the  award  was,  upon  the  application 
of  the  employer,  cut  down  from  $385  to 
$235.  Bruno  v.  International  Coal  &  Coke 
Co.  (1913)  7  B.  W.  C.  C.  (Alberta)  1033. 

Where,  upon  a  request  for  arbitration, 
the  arbitrator  finds  for  the  employers,  he 
may  include  in  the  costs  awarded  the  quali- 
fying fee  of  the  doctor,  although  the  exam- 
ination took  place  before  the  filing  of  the 
request  for  arbitration.  Jones  v.  Davies 
[1914]  3  K.  B.  (Eng.)  549,  [1914]  W.  N. 
•280,  137  L.  T.  Jo.  211,  83  L.  J.  K.  B.  N.  S. 
1531,  7  B.  W.  C.  C.  488. 

The  county  court  judge  has  no  juris- 
diction to  allow,  as  a  set-off  against  costs 
awarded  the  applicant  on  the  arbitration, 
the  costs  granted  to  the  employer  on  a 
prior  appeal  from  interlocutory  orders  of 
the  county  court  judge.  Sutton  v.  Great 
Northern  R.  Co.  (1910)  3  B.  W.  C.  C.  (Eng.) 
160. 

The  employer  is  entitled  to  the  fees  of 
certain  witnesses  who  had  testified  as  ex- 
perts that  there  was  no  accident,  where  the 
county  court  judge  found  that  there  was  an 
accident,  but  that  no  incapacity  had  re- 
sulted therefrom,  and  consequently  found 
for  the  employers.  Finlayson  v.  The  Clin- 
ton (1914)  7  B.  W.  C.  C.  (Eng.)  710.  The 
ground  upon  which  the  county  court  judge 
had  held  that  the  employer  was  not  en- 
titled to  costs  for  these  witnesses  was  that 
they  had  gone  out  of  their  way  and  had 
assumed  the  functions  of  the  court  in  testi- 
fying that  there  was  no  accident,  and  not 
upon  the  ground  that  they  had  testified  as 
to  a  point  upon  which  the  employers  had 
failed. 

The  county  court  has  jurisdiction  to  order 
a  workman  to  pay  the  employers'  costs 
where  the  employer  had  stopped  compen- 
sation, alleging  that  the  workman  was  com- 
pletely recovered,  but,  upon  the  workman's 
bringing  proceedings,  paid  a  sum  into  court 
which  they  admitted  was  due  to  the  work- 
man, but  which  had  not  been  paid,  through 
an  oversight.  Thomas  v.  Cory  Bros.  (1911) 
5  B.  W.  C.  C.  (Eng.)  5. 

The  county  court  judge  has  no  jurisdic- 
tion to  order  the  employer  to  pay  costs  in 
a  case  where  the  employer  and  the  work- 
man had  agreed  upon  a  certain  sum  to  be 
paid  in  redemption  of  the  weekly  payment, 
but  the  workman's  parents  subsequently  ob- 
jected to  the  recording  of  the  agreement 
on  the  ground  that  the  amount  was  inade- 
quate, while  the  county  court  judge  ordered 
the  agreement  to  be  recorded  but  further 
ordered  the  employer  to  pay  the  costs. 
Reed  v.  The  Wymeric  (1914)  7  B.  W.  C.  C. 
(Eng.)  421. 
L.R.A.1916A. 


The  employers  are  entitled  to  withdraw 
an  appeal  to  the  court  of  appeal,  and,  upon 
the  refusal  of  the  workman  to  permit  the 
appeal  to  be  withdrawn,  the  court  of  ap- 
peal will  grant  the  application  made  to 
it  by  the  employers  to  withdraw  the  appeal, 
and  the  cost  of  the  application  will  be  off- 
set against  the  costs  to  which  the  workman 
was  entitled  up  to  the  time  of  the  appeal. 
Stephens  v.  Vickers  [1913]  W.  C.  &  Ins. 
Rep.  (Eng.)  454,  6  B.  W.  C.  C.  469. 

It  is  within  the  discretion  of  the  county 
court  judge  to  direct  that  the  employer  pay 
the  costs  of  proceedings  instituted  to  com- 
pel him  to  pay  compensation,  which  he  had 
agreed  to,  but  which  he  refused  to  pay 
until  letters  of  administration  were  taken 
out  by  the  widow.  Clatworthy  v.  Green 
(1902)  50  Week.  Rep.  (Eng.)  610,  82  L.  T. 
N.  S.  702,  66  J.  P.  596,  18  Times  L.  R. 
641. 

Where  liability  was  admitted  and  the 
amount  agreed  upon,  costs  to  the  counsel 
for  applicant  were  allowed  for  attending 
the  hearing  at  which  the  terms  of  the  agree- 
ment and  the  division  of  the  money  between 
the  widow  and  daughter  were  sanctioned 
by  the  court.  Coleman  v.  Southeastern  R. 
Co.  (1899;  C.  C.)  1  W.  C.  C.  (Eng.)  151. 

It  is  competent  for  the  county  court 
judge  to  refuse  to  make  any  order  for  costs 
in  a  case  in  which  he  dismissed  an  appli- 
cation for  the  termination  of  weekly  pay- 
ments upon  the  ground  that  the  workman 
refused  to  submit  himself  to  all  examina- 
tion under  an  anesthetic,  where  the  county 
court  judge  believed  that  the  difficulty  had 
arisen  solely  from  the  workman's  own  con- 
duct. Lowestoft  Corp.  v.  Aldridge  (1912) 
5  B.  W.  C.  C.  (Eng.)  329. 

In  M'Laughlin  v.  Wemyss  Coal  Co.  [1912] 
W.  C.  Rep.  67,  49  Scot.  L.  R.  202,  the  court 
fixed  a  fee  at  3J  guineas  where  a  party  had 
been  awarded  costs  of  a  stated  case. 

Where  the  respondents  never  disputed 
their  liability  to  pay  full  compensation,  and 
had  paid  it  and  were  continuing  to  pay  it, 
they  were  entitled  to  have  a  memorandum 
of  the  implied  agreement  registered  not- 
withstanding a  request  for  arbitration  had 
been  filed;  and  where,  under  such  request, 
an  awrard  with  costs  is  made,  an  appeal 
must  be  allowed.  Jones  v.  Great  Central 
R.  Co.  (1901)  4  W.  C.  C.  (Eng.)  23. 

8  In  the  absence  of  special  circumstances, 
the    court    of    appeal    has    no    jurisdiction 
to  vary  the  order  of  the  county  court  judge, 
who,   upon   awarding   compensation   to   the 
workman,   refused   to   set   off  the   costs   of 
the  employer  from  a  successful  appeal  from 
a  prior  order  granting  compensation.     Bar- 
nett  v.   Port  of   London   Authority    (1913^ 
108  L.  T.  N.  S.   (Eng.)   944,  82  L.  J.  K.  B. 
N.  S.  918,  57  Sol.  Jo.  577,  [1913]  W.  C.  *. 
Ins.  Rep.  414,  6  B.  W.  C.  C.  466. 

9  It  it  error  for  the  county  court  judge 
to  award  costs  to  the  employer  after  a  sura 
was  paid  into  court,  where  he  had  awarded 


COSTS. 


183 


erly  be  awarded  against  an  employer  who 
has  never  disputed  his  liability  to  com- 
pensation nor  the  amount  thereof,  and 
has  paid  such  an  amount  into  court  with- 
out arbitration  proceedings  being  taken 
against  him.10  Costs  may  be  awarded 
to  the  applicant  although  he  does  not 
secure  as  large  an  award  as  he  had 
claimed,11  but  not  where  he  secures  a 
suspensory  award  only.18 

Under  the  second  schedule  the  county 
court  judge  cannot  award  a  lump  sum 
as  costs.13  Costs  may  be  taxed  imme- 
diately at  the  close  of  the  hearing.14 

Upon  the  full  amount  of  taxed  costs 
being  paid  into  court  for  the  purpose  of 
obtaining  a  stay  while  the  employers 
appealed  to  the  House  of  Lords,  the  court 
of  appeal  cannot  make  the  workman's 
solicitors  personally  liable  for  their  re- 
turn in  the  event  of  a  further  appeal 
being  successful.15 

The  ordinary  rules  of  practice  of  the 
court  of  appeal  as  to  ordering  security 
for  costs  on  appeal  are  applicable  to  an 
appeal  under  the  workmen's  compensa- 
tion act.16  An  application  for  security 


for  costs  in  an  appeal  under  the  com- 
pensation act,  taken  by  the  applicant,  is 
to  be  made  to  the  applicant  first  before 
the  respondent  can  apply  to  the  court 
for  such  security.17  Security  for  costs 
may  be  ordered  although  the  execution 
has  been  stayed  by  the  county  court 
judge,  thus  intimating  that  there  was  a 
question  to  be  determined  by  the  ap- 
pellate court.18  So,  security  for  costs 
may  be  ordered  where  the  appellant,  al- 
though a  poor  man,  was  not  in  a  posi- 
tion to  make  an  affidavit  for  the  pur- 
pose of  appealing  in  forma  pauperis.19 
And  upon  an  appea,!  by  the  workman 
the  employers  are  entitled  to  an  order  for 
security  where  there  is  evidence  that  the 
workman  will  be  unable  to  pay  the  costs 
if  unsuccessful,  notwithstanding  the  fact 
that  the  workman's  lack  of  means  is  due 
entirely  to  the  accident.20  And  security 
for  costs  of  appeal  will  be  ordered,  al- 
though the  proceedings  are  being  con- 
ducted for  the  applicant  by  a  trade 
union.21 

A  different  rule  as  to  requiring  security 
for  costs  appears  to  prevail  in  Ireland.22 


to  the  workman  a  larger  sum  than  that 
which  the  employer  offered.  Williams  v. 
Caeponthren  Colliery  Co.  [1913]  W.  C.  & 
Ins.  Rep.  (Eng.)  155,  6  B.  W.  C.  C.  122. 

Where  the  county  court  judge  found  that 
the  applicant  was  entitled  to  full  com- 
pensation for  a  period  during  which  the 
master  had  paid  him  only  partial  compen- 
sation, and  further  found  that  the  work- 
man was  entitled  to  a  larger  amount  as 
partial  compensation  than  the  employer  had 
offered  to  give  him,  it  is  incompetent  for 
the  judge  to  further  find  that  the  work- 
man should  pay  the  employer  costs.  Evans 
v.  Gwauncaegurwen  Colliery  Co.  [1912]  W. 
C.  Rep.  (Eng.)  215,  106  L.  T.  N.  S.  613,  5 
B.  W.  C.  C.  441. 

10  Lancaster  v.  Midland  R.  Co.   (1908;   C. 
C.)   124  L.  T.  Jo.  (Eng.)  439,  1  B.  W.  C.  C. 
418. 

11  Where  an  injured  workman  was  in  re- 
ceipt of  10  shillings  a  week  as  compensa- 
tion, and   the  employers   sought   to  reduce 
it  2  shillings,  but   the  county  court  judge 
diminished  it  to  7  shillings,  6  pence,  costs 
may    be    awarded    against    the    employer. 
Connor  v.  Meads  (1912)  5  B.  W.  C.  C.  (Eng.) 
435. 

The  court  will  not  interfere  with  the 
exercise  of  the  county  judge's  discretion  in 
respect  to  awarding  costs  to  the  applicant, 
where  the  employer's  answer  was  not  an 
unconditional  submission  to  pay  a  certain 
sum  to  the  applicant,  although  the  appli- 
cant did  not  recover  more  than  the  amount 
offered.  Nicholson  v.  Thomas  (1910)  3  B. 
W.  C.  C.  (Eng.)  452. 

12  It  is  error  for  the  county  court  judge 
to   direct   the   employers   to   pay   the   cost 
where  he   sustained   the   contention  of  the 
employers  that  the  workman  was  not  inca- 
L.R.A.1916A. 


pacitated,  but  made  a  suspensory  award  of 
1  penny  a  week.  Snell  v.  Gross,  Sherwood 
&  Heald  [1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
141,  6  B.  W.  C.  C.  242. 

A  workman  is  not  entitled  to  costs  where 
he  claimed  compensation  for  total  inca- 
pacity, and  was  awarded  merely  a  declara- 
tion of  liability.  Derbyshire  v.  Hethering- 
ton  (1914)  7  B.  W.  C.  C.  (Eng.)  677. 

13  Beadle  v.  The  Nicholas   [1909]    W.  N. 
(Eng.)   227,  101  L.  T.  N.  S.  586. 

14  Gardner  v..  Cox    (1910)    3  B.  W.  C.  C. 
(Eng.)    245. 

isChilton  v.  Blair  (1914)  8  B.  W.  C.  C. 
(Eng.)  1. 

16  Hall  v.  Snowdon  [1899]  1  Q.  B.  (Eng.) 
593,  68  L.  J.  Q.  B.  N.  S.  363,  80  L.  T.  N.  S. 
256,  15  Times  L.  R.  244,  47  Week.  Rep.  322, 
1  W.  C.  C.  114;  Re  Harwood   [1901]  2  K. 

B.  (Eng.)   304,  70  L.  J.  K.  B.  N.  S.  746,  84 
L.  T.  N.  S.  857. 

17  Stanland    v.    Northeastern     Steel     Co. 
(1906)   23  Times  L.  R.   (Eng.)  1. 

18  Shea  v.  Drolenvaux  (1903)  88  L.  T.  N. 
S.    (Eng.)   679,  19  Times  L.  R.  473,  5  W. 

C.  C.  144.     The  earlier  case  of  Hubball  v. 
Everitt    (1900)    16  Times  L.  R.   168,  5  W. 
C.  C.  145,  was  distinguished  on  the  ground 
that  it  was  an  exceptional  case. 

i9Rees  v.  Richard  (1899)  1  W.  C.  C. 
(Eng.)  118. 

20  Brine  v.  May  (1912)  6  B.  W.  C.  C. 
(Eng.)  460. 

Skeggs  v.  Keen  (1899)  1  W.  C.  C.  (Eng.) 
119,  holding  to  the  contrary,  must  be  con- 
sidered as  overruled. 

2lMcLaughlin  v.  Clayton  (1899)   1  W.  C. 
C.    (Eng.)    116;    Haddock    v.    Humphreys 
(1899)   1  W.  C.  C.  (Eng.)  117. 
j      23  It    is    contrary    to    the    policy    of    the 
workmen's  compensation  act  to  require  the 


184 


WORKMEN'S  COMPENSATION. 


And  the  general  practice  relating  to  se- 
curity for  costs  is  not  applicable-  to 
proceedings  under  the  Alberta  workmen's 
compensation  act.23 

5.  Registration   of  memorandums  of 
agreements, 

A  memorandum  of  an  implied  agree- 
ment may  be  registered.24  But  the  coun- 

workman  to  give  security  for  the  cost  of 
his  appeal  to  the  court  of  appeal.  Hutchin- 
son  v.  New  Northern  Printing  &  Weaving 
Co.  [1914]  2  I.  R.  530,  48  Ir.  Law  Times, 
33,  7  B.  W.  C.  C.  971,  following  the  case  of 
Stormount  v.  Workman,  C.  &  Co.  decided 
by  the  Irish  court  of  appeal  in  1899,  re- 
ported in  [1914]  2  I.  R.  (Ir.)  532,  note. 

23Cessarini  v.  Hazel  (1914)  7  B.  W.  C.  C. 
(Alberta)  1059. 

24  Jones  v.  Great  Central   R.  Co.    (1901) 

4  W.  C.  C.  (Eng.)  23. 

25  The  county  court  judge  is  not  entitled 
to  record  a  memorandum  of  agreement  to 
pay  compensation  during  total  incapacity, 
and  to  continue  until  the  same  be  ended, 
diminished,  or   increased,  where   there   was 
no    express    agreement,    either    written    or 
parol,  although  the  employer  had  been  pay- 
ing full  compensation  to  the  workman  for 
nearly  a  year.     Hartshorne  v.  Coppice  Col- 
liery Co.  (1912)  106  L.  T.  N.  S.  (Eng.)  609, 

5  B.  W.  C.  C.  358,   [1912]   W.  C.  Rep.  255. 
A  workman  in  the  employ  of  the  London 

county  council  is  not  entitled  to  have  an 
agreement  recorded  where,  after  an  injury, 
the  council  paid  the  workman  compensation 
merely  in  accordance  with  its  practice  to 
pay  compensation  to  injured  workmen  for 
so  long  as  their  doctors  testified  as  to  the 
workman's  incapacity.  Godbold  v.  London 
County  Council  (1914)  111  L.  T.  N.  S. 
(Eng.)  691,  7  B.  W.  C.  C.  409. 

Where  the  employer  objected  to  the  re- 
cording of  a  memorandum  of  agreement  to 
pay  compensation,  and  thereafter,  upon 
the  commencement  of  arbitration  proceed- 
ings by  the  employee,  withdrew  his  objec- 
tion to  the  agreement  and  it  was  recorded, 
and  the  county  court  judge  dismissed  the 
arbitration  proceedings  upon  the  ground 
that  the  dispute  had  been  settled  by  agree- 
ment, the  court  of  appeal  sent  the  matter 
back  to  the  county  court  judge  upon  the 
ground  that  he  had  not  found  that  there 
was  an  agreement  between  the  parties.  Rees 
v.  Consolidated  Anthracite  Collieries  (1912) 
5  B.  W.  C.  C.  (Eng.)  403,  [1912]  W.  C.  Rep. 
205. 

26  Shore  v.  The  Hyrcania  0911)  4  B.  W. 
C.  C.   (Eng.)   207;  Lunt  v.  Sutton  Heath  & 
L.  G.  Collieries  (1911)  4  B.  W.  C.  C.  (Eng.) 
219;  M'Geown  v.  Workman,  C.  &,  Co.  (1911) 
45  Ir.  Law  Times,  165;   Phillips  v.  Vickers 
[1912]  1  K.  B.  (Eng.)  16,  [1911]  W.  N.  193, 
105  L.  T.  N.  S.  564,  81  L.  J.  K.  B.  N.  S. 
123,   [1912]   W.  C.  Rep.  71,  5  B.  W.  C.  C. 
23;   Halls  v.  Furness   (1909)   3  B.  W.  C.  C. 
(Eng.)   72;   M'Carthy  v.  Stapleton-Brether- 
ton  (1911)  4  B.  W.  C.  C.  (Eng.)  281. 

The  county  court  judge  is  justified  in 
L.R.A.1916A. 


ty  court  judge  has  no  power  to  record  an 
agreement  when  no  agreement,  express 
or  implied,  has  in  fact  been  made,28  or 
to  record  a  memorandum  of  an  agreement 
different  from  that  actually  made.26 

The  word  "genuine"  is  not  to  be  con- 
fined to  "admitted"  or  "proved"  in  fact. 
It  extends  to  the  meaning  of  "existing 
as  evidencing  an  obligation  enforceable 

refusing  to  register  an  agreement  which 
purported  to  provide  for  the  payment  to  the 
workman  of  full  compensation  during  total 
or  "partial"  incapacity,  where  it  appeared 
that  the  actual  agreement  was  to  pay  com- 
pensation only  during  total  incapacity. 
Maundrell  v.  Dunkerton  Collieries  Co.  (1910> 
4  B.  W.  C.  C.  (Eng.)  76. 

A  workman  is  not  entitled  to  have  re- 
corded an  agreement  which  does  not  con- 
tain the  Words  "during  the  period  of  total 
incapacity  for  work,"  which  were  contained 
in  certain  receipts  which  he  had  given  for 
compensation,  which  receipts  formed  the 
basis  of  the  agreement.  Moore  v.  Pryde 
(1912)  50  Scot.  L.  R.  302,  6  B.  W.  C.  C. 
384. 

The  county  court  judge  is  not  justified1 
in  ordering  a  filing  of  a  memorandum  of 
agreement  to  the  effect  that  the  employer 
agreed  to  pay  the  workman  a  fixed  sum 
from  the  date  of  the  accident,  no  time 
limit  being  fixed,  where  the  only  agree- 
ment made  by  the  employer  was  to  pay  the 
fixed  sum  so  long  as  its  own  doctor  certi- 
fied that  incapacitv  existed.  Phillips  v. 
Vickers  [1912]  1  K"  B.  (Eng.)  16,  81  L.  J. 
K.  B.  N.  S.  123,  105  L.  T.  N.  S.  564,  5  B. 
W.  C.  C.  23,  [1911]  W.  N.  193,  [1912]  W. 
C.  Rep.  71. 

In  M'Lean  v.  Allan  Line  S.  S.  Co.  [1912} 
S.  C.  256,  49  Scot.  L.  R.  207,  5  B.  W.  C.  C. 
527,  the  Lord  President  said:  "The  real 
dispute  is  upon  the  words  that  occur  after 
the  provision  as  to  payment  during  total 
disablement;  namely,  the  words,  'the 
amount  of  any  payment  due  during  partial 
disablement  to  be  settled  hereafter.'  In 
the  document  as  signed  the  words  are  as  I 
have  read  them;  whereas,  in  the  memoran- 
dum as  proposed  to  be  recorded,  those  words 
are  replaced  by  the  words  'during  incapac- 
ity for  work,  or  until  such  time  as  the  same 
shall  be  ended,  diminished,  or  redeemed  in 
accordance  with  the  provisions  of  the  said 
act.'  Now  the  appellant  maintains  that 
those  words  in  the  memorandum  are  really 
simply  a  more  accurate  and  proper  way  of 
expressing  what  the  words  in  the  written 
agreement  bore.  The  respondents,  on  the 
other  hand,  say  no,  and  in  particular  main- 
tain that  it  will  make  an  important  practi- 
cal difference  to  them,  because  they  say 
that  the  result  of  recording  the  memoran- 
dum as  proposed  will  be  that  if  the  seaman 
partially  recovers,  they  will  be  bound  to 
pay  if  charged  until  they  can  get  the  pay- 
ment reviewed  in  a  process  of  review;  and 
that,  albeit  that  eventually  decree  in  that 
process  of  review  will  draw  back  to  the 
term  of  presenting  the  petition,  yet  never- 


REGIS'!  RATION  OF  AGREEMENTS. 


185 


either  presently  or  at  a  future  date."  27 
Where  there  is  no  evidence  on  which  the 
county  court  judge  may  find  that  an 
agreement  is  not  genuine,  it  must  be  reg- 
istered, and  thereafter  the  judge  has  no 
power  to  hear  an  application  for  com- 
pensation.28 If  there  is  a  variation  not 
trivial  between  the  memorandum  of 
agreement  proposed  to  be  recorded,  and 
the  agreement  actually  entered  into,  it  is 
not  for  the  arbiter  to  decide  whether  the 
difference  is  so  substantial  as  to  prevent 
the  agreement  in  the  memorandum  being 
considered  genuine.29  Where  the  agree- 
ment was  to  pay  the  workman  weekly 
compensation  "in  terms  of  the  act,"  a 
memorandum  of  an  agreement  may  be 
recorded  to  the  effect  that  the  employers 
agreed  to  pay  compensation  under  the  act 
"until  the  same  is  ended,  diminished,  re- 
deemed, or  suspended,"  since  the  words 
added  were  merely  an  expansion  of  the 
words,  "in  the  terms  of  the  compensa- 
tion act."30  A  memorandum  is  genuine 
so  as  to  be  entitled  to  be  recorded  al- 
though it  omits  to  mention  the  stipula- 


tion that  the  expenses  were  to  be  paid 
by  the  employer.31  The  sheriff-substi- 
tute errs  in  refusing  to  record  an  agree- 
ment to  pay  compensation  durin^  in- 
capacity as  not  genuine  in  that  the 
agreement  was  to  pay  only  during  total 
incapacity,  where  the  main  evidence  of 
the  agreement  was  receipts  which  stated 
that  the  payments  were  "accepted  as  the 
amount  payable  under  the  workmen's 
compensation  act  1906."82 

As  to  the  effect  of.  an  agreement  to 
oust  the  power  of  the  arbitrator,  see 
ante,  79. 

Upon  the  workman's  application  to  re- 
cord an  agreement,  the  county  court 
judge  is  not  authorized  to  decline  to  re- 
cord the  agreement,  on  the  ground  that 
the  applicant  is  not  a  workman,33  nor 
upon  the  ground  that  he  had  not  met 
with  an  accident,34  nor  upon  the  ground 
that  the  amount  to  be  paid  was  too 
high.35  A  workman  is  entitled  to  have  a 
memorandum  of  agreement  recorded  al- 
though the  employer,  after  paying  full 
compensation  for  a  number  of  weeks, 


theless  they  may  find  themselves  in  this 
unpleasant  position,  that  during  the  time 
the  case  has  taken  to  decide  they  have 
had  to  pay  the  full  sum,  and  that  sum 
they  will  never  get  back;  whereas  if  the 
agreement  was  recorded  in  the  precise  terms 
in  which  it  was  written  they  could  not 
be  charged  to  pay  during  the  period  after 
they  had  alleged  that  total  incapacity  had 
ceased;  or  rather,  to  put  it  more  accurate- 
ly, that  if  a  charge  were  presented  against 
them,  they  would  be  able  to  suspend  it,  and 
therefore  would  not  be  in  the  position  of 
having  to  pay  the  money  that  they  even- 
tually would  not  be  able  to  get  back.  Now, 
I  do  not  think,  although  we  have  had  a 
discussion  on  the  question,  that  we  need 
decide  at  present  whether  the  one  set  of 
words  is  exactly  the  same  as  the  other,  or 
is  not.  The  only  thing  we  can  decide  to-day 
is,  what  is  the  sheriff's  duty  when  a  mem- 
orandum is  produced  to  him  for  the  pur- 
pose of  being  recorded  and  the  genuineness 
of  it  is  disputed?  Now,  with  regard  to 
this  matter,  the  sheriff  is  not  really  acting 
as  arbiter  at  all;  he  is  acting  in  a  semi- 
ministerial  capacity." 

27  Buckley,   L.  J.,   in   Popple  v.   Froding- 
ham  Iron  &  Steel  Co.  [1912]  2  K.  B.  (Eng.) 
141,  81  L.  J.  K.  B.  N.  S.  769,  106  L.  T.  X.  S. 
703,  5  B.  W.  C.  C.  394. 

28  Fox     v.     Battersea     Borough     Council 
(1911)  4  B.  W.  C.  C.  (Eng.)  261. 

29  A  workman  is  not  entitled  to  have  a 
memorandum  of  agreement  recorded  against 
the    opposition    of    the    employer   where    it 
did  not  contain  the  phrase  "during  the  peri- 
od of  total  incapacity  for  work,"  which  was 
contained  in  several  receipts  for  compensa- 
tion which  the  master  had  previously  given 
him  on  account  of  the  same  injury.     Moore 
v.  Pryde   [1913]   S.  C.  457,  50  Scot.  L.  R. 
L.R.A.1916A. 


,  302,  [1913]  W.  C.  &  Ins.  Rep.  100,  6  B.  W. 
C.  C.  384. 

SOBabcock  v.  Pearson  [1913]  S.  C.  959, 
50  Scot.  L.  R.  790,  [1913]  W.  C.  &  Ins.  Rep. 
430,  6  B.  W.  C.  C.  841. 

31  M'Laughlin    v.    Pumpherston    Oil    Co. 

(1914)  52   Scot.   L.   R.   48,   8   B.   W.   C.   C. 
354. 

32  Scott     v.     Sanquhar     &     K.     Collieries 

(1915)  52  Scot.  L.   R.   391,  8  B.  W.  C.  C. 
405. 

33  The  county  court  judge  cannot  refuse 
to  record  an  agreement  entered  into  by  the 
workman  and  the  employers  on  the  ground 
that  the  applicant  is  not  a  workman  with- 
in the  meaning  of  the  act,  since  that  ques- 
tion   has    been    settled   by    the    agreement. 
Goodsell    v.    The    Lloyds    [1914]    3    K.    B. 
(Eng.)    1001,  30  Times  L.  R.  622,  83  L.  J. 
K.  B.  N.  S.  1733,  7  B.  W.  C.  C.  631. 

34  An    agreement    may    be   registered   al- 
though at   the   time   when    it   is   made   the 
employers    did    not    admit    liability    under 
the  act,  having  taken  the  position  that  the 
pursuer  had  not  met  with  an  accident.     MJ- 
Guire  v.  Paterson  [1913]  S.  C.  400,  50  Scot. 
L.  R.  289,  [1913]  W.  C.  &  Ins.  Rep.  107,  6 
B.  W.  C.  C.  370. 

35  The  sheriff's  clerk,  before  filing  a  mem- 
orandum of  agreement,  is  not  bound  to  as- 
certain the  facts  connected  with  the  accident 
and  the   probable  duration   of  the   injuries 
resulting  therefrom.      (Scot.)   Ibid. 

Objections  by  the  employers  that  an 
agreement  had  been  made  under  essential 
error  as  to  the  rights  of  parties  under  the 
act,  and  that  the  sum  agreed  to  be  paid 
was  more  than  half  of  the  workman's 
average  weekly  earnings,  are  irrelevant  as 
answers  to  a  petition  for  warrant  to  regis- 
ter an  agreement  which  is  not  denied.  Mac- 
donald  v.  Fairfield  Shipbuilding  &  Engi- 


186 


WORKMEN'S  COMPENSATION. 


had  offered  the  workman  light  labor  at 
the  same  pay,  although  it  was  admitted 
that  the  laborer  had  not  entirely  re- 
covered.36 

An  agreement  which  is  no  longer  in 
force  cannot  be  recorded;  as  where  the 
workman  had  signed  a  final  discharge  of 
his  claim,37  or  where  the  incapacity  had 
ceased.38  It  would  appear  that  a  con- 
trary decision  was  rendered  in  an  early 
case  in  the  court  of  appeal,  and  also  in 
the  second  division  in  the  court  of  ses- 
sions.39 But  these  decisions  were  said 
in  the  judgment  in  the  Popple  Case  to 
be  distinguished  probably  by  the  facts  in 
the  cases;  if  not,  the  conclusions  reached 
were  disapproved.40  It  was  also  held 
in  a  comparatively  early  case  that  the 
memorandum  of  agreement  to  pay  com- 
pensation should  be  registered  on  ap- 
plication, although  it  had  been  ter- 
minated by  a  subsequent  agreement.41 

The  workman  is  entitled  to  have  the 
memorandum  of  agreement  registered, 
although  he  has  recovered  and  is  earn- 


ing more  than  before  his  injury,  where 
he  is  likely  to  be  incapacitated  from  time 
to  time  in  consequence  of  his  injury.42 

Proceedings  for  the  recording  of  a 
memorandum  of  agreement  to  which  a 
minute  of  objection  has  been-  lodged,  and 
proceedings  for  arbitration  for  com- 
pensation in  the  same  case,  cannot  be 
joined.43 

Where  a  verbal  agreement  for  the  pay- 
ment of  a  certain  weekly  compensation 
was  entered  into  between  the  master 
and  the  injured  workman,  it  was  held 
that  this  agreement,  after  having  been 
recorded,  fixed  the  rights  of  the  parties 
until  another  agreement  should  be  re- 
corded. It  is  not  displaced  by  a  sub- 
sequent unrecorded  agreement.44  The 
question  whether  one  agreement  has  been 
superseded  by  another  is  to  be  deter- 
mined in  an  application  for  review,  and 
not  to  be  determined  in  a  suspension  in 
the  supreme  court ;  45  so  also  is  the  ques- 
tion whether  or  not  incapacity  has 
ceased.46 


neering    Co.    (1905)    8    Sc.    Sess.    Gas.    5th 
series   (Scot.)   8. 

36Keevans  v.  Mundy  [1914]  S.  C.  525,  2 
Scot  L.  T.  350,  51  Scot.  L.  R.  462,  7  B.  W. 
C.  C.  883. 

37  The  arbitrator  can  competently  deter- 
mine the  validity  of  an  alleged  discharge, 
in  an  application  to  record  a  memorandum 
of  agreement.    Hanley  v.  Niddrie  &  B.  Coal 
Co.  [1909-10]  S.  C.  (Scot.)   875. 

38  In  Popple  v.  Frodingham  Iron  &  Steel 
Co.    [1912]    2   K.   B.    (Eng.)    141,   81   L.  J. 
K.  B.  N.  S.  769,  106  L.  T.  N.  S.  703,  [1912] 
W.   C.   Rep.   231,   5   B.   W.   C.    C.   394,   the 
court  of  appeal  held  that  an  agreement  to 
pay   compensation   during   total   incapacity 
could  not   be   recorded   after   the   total   in- 
capacity had  ceased.     Cozens-Hardy,  M.  R., 
apparently  took  the  view  that  Coakley  v. 
Addie  [1909]  S.  C.  545,  46  Scot.  L.  R.  408, 
2  B.  W.  C.  C.  437,  infra,  was  in  some  way 
distinguishable;  but  in  his  discussion  of  the 
case  he   does  not   make  it  clear  what   the 
distinction    is,   and   Buckley,   L.   J.,   stated 
expressly   that   he   was   not   able   to   agree 
with  the  court  in  the  Coakley  Case. 

No  warrant  to  record  an  agreement 
should  be  granted  where  the  agreement 
sought  to  be  recorded  has  been  superseded 
and  brought  to  an  end  by  the  report  of  a 
referee  appointed  by  a  joint  letter,  that  in- 
capacity had  ceased.  McNaughton  v.  Cun- 
ningham [1909-10]  S.  C.  980,  47  Scot.  L.  R. 
781,  3  B.  W.  C.  C.  576,  577. 

A  memorandum  of  agreement  to  pay 
compensation  is  barred  from  being  recorded 
where  the  condition  of  the  workman  was 
submitted  to  a  medical  referee  and  he  re- 
ported him  fit  for  work.  (Scot.)  Ibid. 

Under  sched.  2,  §  9,  subs.  B,  where  a 
workman  has  returned  to  work  at  the  same 
or  better  wages  than  before  the  accident, 
but  is  subsequently  dismissed  because  of  a 
L.R.A.1916A. 


reduction  of  the  staff,  and  not  because  of 
incapacity,  he  cannot  have  the  unrecorded 
agreement  under  which  he  had  been  receiv- 
ing compensation  recorded.  Matthews  v. 
Baird  [1910]  S.  C.  689,  47  Scot.  L.  R.  627. 

39  The  only  duty  of  the  registrar  of  the 
county    court    under   paragraph    (8)    is    to 
ascertain  whether  the  memorandum  actual- 
ly represents  the  agreement  of  the  parties; 
he   cannot    refuse   to  record   it   simply   be- 
cause changed  conditions  would  not  entitle 
the  workman  to  the  amount  of  compensa- 
tion fixed.     Blake  v.  Midland  R.  Co.  [1904] 
I  K.  B.    (Eng.)    503,  73  L.  J.  K.  B.  N.  S. 
179,  68  J.  P.  215,  90  L.   T.  N.  S.  433,  20 
Times  L.  R.  191. 

See  also  Coakley  v.  Addie    [1909]    S.  C. 
545,  46  Scot.  L.  R.  408,  2  B.  W.  C.  C.  437. 

40  In  the  Blake  Case  the  agreement  was 
for  "payment  during  total  or  partial  inca- 
pacity;"   and   Buckley,   L.   J.,   pointed   out 
that    as    long    as    incapacity    of    any    kind 
existed,  there  could  be  no  objection  to  re- 
cording   the    agreement.      In    the    Coakley 
Case   it  is  possible  that  the  judge  had  in 
mind   the    possibility    of   incapacity   recur- 
ring. 

41  Keeling  v.  Eastwood   (1904)   116  L.  T. 
Jo.    (Eng.)    595,  6  W.  C.  C.  167. 

42  Cammick  v.  Glasgow  Iron  &  Steel  Co. 
(Ct.  of  Sess.)  4  F.  198,  as  cited  in  2  Mews' 
Dig.  Supp.   1578. 

43  Arniston  Coal  Co.  v.  King  [1913]  S.  C. 
892,   50  Scot.  L.  R.   685,    [1913]    W.   C.   & 
Ins.  Rep.  388,  6  B.  W.  C.  C.  826. 

44  Fife   Coal    Co.   v.   Davidson    [1906-07] 
S.  C.   (Scot.)  90. 

45  Fife  Coal  Co.  v.  Lindsay  [1908]   S.  C. 
431,  45  Scot.  L.  R.  317,  1  B.  W.  C.  C.  117. 

46  Where  under  an  agreement  a  workman 
has  received  weekly  payments  of  compen- 
sation,  which   were  varied   or  discontinued 
by    employers,   and   he   afterwards   records 


PROCEEDINGS  BY  PARTIES  INTERESTED. 


187 


Two  cases  involving  the  construction 
of  particular  agreements  will  be  found 
in  the  note.47 

Schedule  II.  (9)  (b)  does  not  give  the 
arbitrator  the  discretion  to  refuse  to  re- 
cord an  agreement  in  a  case  where  the 
workman  has  returned  to  work  and  is 
earning  the  same  wages  as  before  the 
accident;  he  should  record  the  mem- 
orandum or  agreement  and  attach  such 
conditions  thereto  as,  in  the  circum- 
stances, he  thinks  just.48 

6.  Proceedings  1>y  "parties  interested." 

The  court  of  appeal  has  held  that  an 
approved  society  under  the  national  in- 
surance act  of  1911  is  not  a  "party  in- 


terested" within  the  meaning  of  the 
phrase  as  used  in  schedule  II.  K  9,  of  the 
workmen's  compensation  act.49  Whether 
or  not  an  approved  society  is  a  "party 
interested"  within  the  meaning  of  this 
paragraph  of  schedule  2  was  raised,  but 
not  decided,  in  a  Scotch  case.50 

By  §  11  (2)  of  the  national  insurance 
act  of  1911,  when  an  insured  person  ap- 
pears to  be  entitled  to  compensation  and 
"unreasonably  refuses  or  neglects  to  take 
proceedings,"  the  society  concerned  may 
take  proceedings  on  his  behalf.  What 
constitutes  unreasonable  refusal  to  take 
proceedings  in  his  own  behalf  has  been 
passed  upon  in  a  few  cases.51 

It  has  been  held  that  a  trade  union  may 


a  memorandum  of  that  agreement  and 
charges  for  payment,  the  court,  with  regard 
to  payments  due  for  the  period  subsequent 
to  recording,  will  not  suspend  the  charge, 
the  employers'  remedy  lying  in  an  applica- 
tion for  review.  Lochgelly  Iron  &  Coal  Co. 
v.  Sinclair  [1909]  S.  C.  (Scot.)  922. 

*7  An  agreement  between  the  employer 
and  the  injured  workman  that  the  employer 
is  to  pay  full  compensation  until  a  certain 
day,  and  that  thereafter  he  is  to  furnish 
the  workman  light  work  at  his  prior  wages, 
and  that  should  the  workman  "be  unable 
to  do  such  light  work  or  other  work  at 
any  time  hereafter  by  reason  of  the  injur- 
ies received  as  aforesaid,  his  claim  for  com- 
pensation is  to  revive,"  is  terminated  upon 
the  recurrence  of  his  total  incapacity,  and 
upon  the  subsequent  recovery  of  capacity 
to  do  light  work  he  must  rely  upon  the 
act,  and  not  upon  the  contract,  and  con- 
sequently is  not  entitled  to  receive  as  com- 
pensation the  full  difference  between  his 
present  wages  and  the  amount  received 
prior  to  his  injury.  Branford  v.  North 
Eastern  R.  Co.  (1910)  4  B.  W.  C.  C.  (Eng.) 
84. 

A  workman  who,  by  an  unrecorded  agree- 
ment, received  compensation  for  over  a 
year,  and  was  subsequently  employed  for 
over  seven  years  at  light  labor,  the  pay- 
ments ceasing  upon  his  being  so  employed, 
is  not  thereafter,  upon  the  recurrence  of 
total  incapacity,  estopped  from  filing  an 
ordinary  claim  for  compensation.  Demp- 
ster v.  Baird  [1908]  S.  C.  722,  45  Scot.  L. 
R.  432,  1  B.  W.  C.  C.  62.  The  view  taken 
by  the  court  was  that  the  agreement  hav- 
ing been  supplanted  by  an  agreement  to 
pay  wages,  which  agreement  continued  for 
over  seven  years,  could  not  be  held  to  be 
in  force,  and  consequently  the  remedy  of 
the  workman  was  to  bring  an  ordinary 
claim  for  compensation. 

Upon  a  second  appeal,  it  was  held  that 
he  was  barred  from  claiming  any  compensa- 
tion in  respect  of  his  partial  incapacity 
during  the  seven  years.  [1909]  S.  C.  127, 
46  Scot.  L.  R.  119. 

48  Scott    v.     Sanquhar     &    K.    Collieries 
(1915)    52  Scot.  L.  R.  391,  8  B.  W.  C.  C. 
405. 
L.R.A.1916A. 


*»Bonney  v.  Hoyle  [1914]  2  K.  B.  (Eng.) 
257,  83  L.  J.  K.  B.  N.  S.  541,  136  L.  T.  Jo. 
376,  30  Times  L.  R.  280,  58  Sol.  Jo.  268, 
[1914]  W.  N.  43,  12  L.  G.  R.  358,  110 
L.  T.  N.  S.  729,  7  B.  W.  C.  C.  168,  holding 
that  such  society  has  no  right  to  intervene 
and  object  to  the  recording  of  a  memoran- 
dum of  agreement. 

50  Baird    v.    Ancient    Order    of    Foresters 
[1914]   S.  C.  965,  51  Scot.  L.  R.  819,  7  B. 
W.  C.  C.  943.     In  this  case  it  was  held  that 
it   is   error  for  the  sheriff-clerk,  upon  the 
lodging  of  an  agreement  between  the  em- 
ployer  and   an   injured   workman,   whereby 
the  weekly  payments  were  to  be  redeemed 
by  a  lump  sum,  and  the  subsequent  lodging 
by  an  approved  society  of  a  minute  object- 
ing to  the  recording  of  the  memorandum  of 
agreement   upon   the  ground  that  the   sum 
was  inadequate,  to  hand  on  the  minute  to 
the  sheriff,  as  it  was  the  duty  of  the  sher- 
iff-clerk  to    consider    the    information    ten- 
dered  him,   and  then   for  him,   if   lie   were 
satisfied,    to    prepare    and    lodge    a    minute 
setting  forth   all   his   reasons,   so   that   the 
memorandum  could  then  be  dealt  with  as  an 
application  for  arbitration  on  the  question 
raised  in  the  sheriff-clerk's  minute. 

51  Where   a   workman  received  an   injury 
for   which   he   was    paid   compensation    for 
three    weeks,    and    thereafter    returned    to 
work  for  about  six  months,  when  he  became 
unwell  and  underwent  an  operation,  and  for 
about  three  months  received  insurance  from 
an    approved    society    of    which    he    was    a 
member,  and  informed  the  society  that,  in 
his  view,  his  illness  was  not  the  result  of 
the    prior    accident,    and    that    he    did    not 
propose    to    take    proceedings    against    the 
employer  for  compensation,  it  is  not  com- 
petent   for    the    approved    society    to    take 
them  in  his  name,  since  the  workman  has 
not   unreasonably   refused    or   neglected    to 
take    such    proceedings.      Rushton    v.    Skey 
[1914]   3  K.  B.    (Eng.)    706,   [1914]   W.  N. 
281,  137  L.  T.  Jo.  212,  30  Times  L.  R.  60, 
83  L.  J.  K.  B.  N.  S.  1503,  111  L.  T.  N.  S. 
700,  58  Sol.  Jo.  685,  7  B.  W.  C.  C.  508. 

A  workman  does  not  unreasonably  refuse 
nor  neglect  to  take  proceedings  for  re- 
covery of  compensation  himself,  so  as  to 
entitle  an  approved  society  to  take  pro- 


188 


WORKMEN'S  COMPENSATION. 


help  the  workman,  but  it  is  not  open  to 
it  to  take  proceedings  in  the  workman's 
name.62 

7.  Enforcement  of  awards  and  agree- 
ments. 

The  memorandum  of  the  compensation 
awarded  by  an  arbitrator  under  the  act, 
when  recorded  in  the  manner  prescribed 
by  1  (8),  may  be  enforced  by  an  order 
of  committal  under  the  debtors'  act  1869, 
§  5.63  So  an  award  may  be  enforced  by 
judgment,  summons,  and  imprisonment.64 
An  agreement  to  pay  compensation  as 
long  as  total  incapacity  lasts  cannot  be 
enforced  by  execution  after  the  employer 
raises  the  question  that  total  incapacity 
has  ceased.65  So,  an  agreement  made  by 
the  employers  to  pay  a  certain  sum 
"during  the  time  of  the  incapacity"  of 
a  workman  injured  while  employed  does 


not  entitle  the  workman  to  obtain  exe- 
cution without  a  hearing,  upon  the  ques- 
tion being  raised  by  the  employer  that 
the  incapacity  had  ceased.56 

Under  the  British  Columbia  act,  the 
county  court  cannot  issue  an  execution 
against  the  employers  of  a  deceased 
workman  for  the  compensation  awarded 
to  his  father,  where  the  employer  had 
paid  money  into  court  in  full  settle- 
ment of  the  claim  before  the  award.67 

S.  Rectification   of   the   register. 

A  few  cases  have  passed  upon  the 
power  of  the  arbitrator  to  rectify  the 
register  under  schedule  II.  |  9  (c).58  The 
county  court  judge  does  not  have  power 
to  set  aside  the  judgment  filed  in  his 
court  by  the  duly  appointed  arbitrator, 
since  this  does  not  amount  to  a  recti- 
fication of  the  register.69 


ceedings  in  his  name,  where  the  evidence 
showed  that  the  workman  was  anxious  to 
bring  the  proceedings,  but  had  not  the  nec- 
essary money  so  to  do.  Burnham  v.  Hardv 
(1915)  84  L.  J.  K.  B.  N.  S.  (Eng.)  714, 
[1915]  W.  C.  &  Ins.  Rep.  146,  8  B.  W.  C. 
C  57 

52Bobbey  v.  Crosbie  (1915)  84  L.  J.  K. 
B.  N.  S.  (Eng.)  856,  112  L.  T.  N.  S.  900,  8 

B.  W.  C.  C.  236. 

The  county  court  judge  is  not  entitled 
to  dismiss  an  application  for  compensation 
because  the  counsel  for  applicant  declines 
to  state  whether  he  appears  for  the  work- 
man or  for  an  approved  society;  he  should 
first  hear  the  evidence  and  ascertain  in  that 
way  whether  it  is  the  workman's  applica- 
tion or  that  of  the  society.  Allen  v. 
Francis  [1914]  3  K.  B.  (Eng.)  1065,  30 
Times  L.  R.  695,  83  L.  J.  K.  B.  N.  S.  1814, 
58  Sol.  Jo.  753,  7  B.  W.  C.  C.  779. 

53  Bailey  v.  Plant   [1901]   1  K.  B.   (Eng.) 
31,  70  L.  J.  Q.  B.  N.  S.  63,  65  J.  P.  49,  49 
Week.  Rep.  103,  83  L.  T.  N.  S.  459,  17  Times 
L.  R.  48. 

54  Johnson  v.  Adshead   (1900;   C.  C.)   109 
L.  T.  Jo.   (Eng.)  40,  2  W.  C.  C.  158. 

55  Warren  v.  Roxburgh   (1912)    106  L.  T. 
N.  S.   (Eng.)   555,  5  B.  W.  C.  C.  263. 

56  Said  v.  Welsford  (1910)  3  B.  W.  C.  C. 
(Eng.)    233. 

57  British    Columbia    Copper    Co.    v.    Mc- 
Kittrick   (1913;  B.  C.)   7  B.  W.  C.  C.  1037. 

68  The  county  court  judge  had  no  juris- 
diction to  rectify  the  register  upon  the 
ground  that  the  applicant  was  an  adult, 
and  only  entitled  to  one  half  compensation, 
while  the  memorandum  of  agreement,  as- 
suming that  she  was  a  minor,  awarded  her 
full  compensation.  Schofield  v.  Clough 
(1912)  5  B.  W.  C.  C.  (Eng.)  417,  [1912]  W. 

C.  Rep.  301.     The  employers  subsequently 
applied  under  schedule  II.  If   9    (e)    (1)    to 
have   the   record   of   memorandum   removed 
from  the  register,  and  the  court  of  appeal 
held  that  there  was  no  jurisdiction  to  grant 
an   order   to   this    effect.      [1913]    2   K.    B. 
L.K.A.1916A. 


(Eng.)  103,  82  L.  J.  K.  B.  N.  S.  447,  108 
L.  T.  N.  S.  532,  57  Sol.  Jo.  243,  [1913]  W. 
C.  &  Ins.  Rep.  292,  6  B.  W.  C.  C.  66. 

Where  the  respondents  had  come  to  an 
agreement  as  to  the  payment  of  compensa- 
tion with  a  workman  who  was  injured  on 
board  a  vessel  some  miles  from  the  dock, 
so  that,  as  it  was  alleged,  the  act  did  not 
apply,  but  the  payments  were  in  the  na- 
ture of  a  gratuity,  and  the  county  court 
judge  had  ordered  such  agreement  regis- 
tered over  the  respondents'  objection  that 
the  agreement  was  purely  an  act  of  grace, 
and  the  respondents  did  not  appeal  from 
this  order,  but  subsequently  applied  to  the 
judge  for  a  rectification  of  the  register,  the 
court  of  appeal  held  that,  as  there  was  no 
mutual  mistake  or  fraud,  and  the  memo- 
randum had  been  declared  to  be  genuine, 
and  had  been  recorded  as  such,  the  matter 
was  finally  settled  between  the  parties,  and 
could  not  be  gone  into  for  the  purpose  of 
determining  whether  it  was  simply  an 
agreement  of  words  or  one  of  law.  Master- 
man  v.  Ropner  (1909)  127  L.  T.  Jo.  (Eng.) 
8. 

The  authority  given  to"  the  sheriff  to 
rectify  the  register  does  not,  in  an  applica- 
tion to  rectify,  empower  him  to  determine 
questions  as  to  the  rights  and  liabilities 
of  the  parties.  Baird  v.  Stevenson  [1906- 
07]  S.  C.  (Scot.)  1259. 

A  county  court  judge  may  alter  his  verbal 
award,  but  after  the  written  award  has 
been  signed  and  sealed,  he  has  no  power 
to  alter  it  except  to  correct  a  clerical  error. 
Mowlem  v.  Dunne  [1912]  2  K.  B.  (Eng.) 
136,  81  L.  J.  K.  B.  N.  S.  777,  106  L.  T.  N. 
S.  611,  [1912]  W.  N.  98,  [1912]  W.  C.  Rep. 
298,  5  B.  W.  C.  C.  382.  In  his  signed  award, 
the  arbitrator  had  not  given  the  applicant 
costs,  and  he  attempted  to  correct  the 
award  by  including  a  provision  allowing 
costs  to  the  workman. 

59  British  Columbia  Copper  Co.  v.  Mc- 
Kittrick  (1913;  B.  C.)  7  B.  W.  C.  C.  1037. 


AGREEMENTS  AS  TO  LUMP  SUMS. 


189 


9.  Agreements  as  to  lump  sums. 

Under  schedule  II.  $  9,  (d),  the  arbi- 
trator has  the  power  to  pass  upon  the 
adequacy  of  a  lump  sum  agreed  upon  by 
the  parties  for  the  redemption  of  the 
weekly  payment,60  but  if  he  finds  the 
amount  agreed  upon  inadequate,  he  has 
no  power  to  fix  the  amount  to  be  paid  in 
redemption  of  the  weekly  payment.61 

An  agreement  to  give  an  injured 
workman  a  lump  sum  and  to  give  him 
"regular"  employment,  in  lieu  of  all 
claim  under  the  act,  is  not  broken  by  a 
dismissal  of  the  workman  after  three 
years,  where  the  agreement  contained  no 
term  of  endurance  for  the  employment.62 


The  death  of  either  party  to  a  valid 
agreement  for  the  redemption  of  week- 
ly payments  by  a  lump  sum  does  not  pre- 
vent the  subsequent  registration  of  such 
agreement,  so  as  to  make  it  enforceable 
as  a  county  court  judgment  under  sched- 
ule II.  1  O'.63 

It  has  been  held,  in  construing  ^j  4 
of  rule  56a  of  the  Rules  of  1908,  that  if 
someone  on  behalf  of  infant  dependents 
agreed,  so  far  as  he  could,  to  the  pay- 
ment of  a  certain  sum  into  court,  and 
the  registrar  was  satisfied  with  the 
amount  and  signed  the  receipt,  the  agree- 
ment was  binding  upon  the  infant.6* 

There  is  nothing  in  the  act  to  prevent 


60  It  is  the  duty  of  the  county  court  judge 
to  pass  upon  the  adequacy  of  an  agreement 
for  the  redemption  of  a  weekly  payment 
by  a  lump  sum.  The  Segura  v.  Blampied 
(1911)  4  B.  W.  C.  C.  (Eng.)  192. 

Where  a  workman  objects  to  the  filing 
of  a  memorandum  of  an  agreement  for  the 
payment  of  a  lump  sum  upon  the  ground 
that  the  sum  was  inadequate,  and  that  the 
agreement,  although  signed  by  him,  was  so 
signed  under  a  misrepresentation  on  the 
part  of  the  employers,  the  sheriff's  substi- 
tute errs  in  granting  a  warrant  to  record 
the  memorandum  without  inquiry  into  the 
adequacy  of  the  amount  and  the  misrepre- 
sentation averred.  Burns  v.  Baird  [1913] 
S.  C.  358,  50  Scot.  L.  R.  280,  [1913]  W.  C. 
&  Ins.  Rep.  61,  6  B.  W.  C.  C.  362. 

Where  an  employer  and  the  workman 
have  entered  into  an  agreement  whereby 
the  employer  shall  redeem  by  a  lump  sum 
weekly  payments  of  compensation  payable 
to  the  workman,  it  is  prima  facie  the  duty 
of  the  registrar  to  record  a  memorandum 
of  the  agreement  on  being  satisfied  of  its 
genuineness,  and  if  the  adequacy  of  the 
sum  is  called  in  question,  the  registrar, 
proceeding  under  schedule  2,  §  9,  must  in- 
quire whether  the  sum  is  adequate.  Rex  v. 
Registrar  of  Bow  County  Ct.  (Div.  Ct.) 
[1914]  3  K.  B.  (Eng.)  266,  [1914]  W.  N. 
223,  83  L.  J.  K.  B.  N.  S.  1806,  111  L.  T.  N. 
S.  277. 

The  refusal  of  the  county  court  judge 
to  record  an  agreement  for  a  lump  sum 
settlement,  on  the  ground  of  inadequacy, 
will  not  bind  him  to  award  compensation 
to  the  workman  on  his  subsequent  applica- 
tion for  compensation,  where  the  judge 
finds  that  the  incapacity  is  no  longer  due 
to  the  accident.  Beech  v.  Bradford  Corp. 

(1911)  4  B.  W.  C.  C.   (Eng.)   236. 

In   Johnson    v.   Oceanic    Steam   Nav.    Co. 

(1912)  5  B.  W.  C.  C.  (Eng.)   322,  the  court 
of  appeals  sustained  the  ruling  of  the  coun- 
ty court  judge  that  the  sum  of   £10  is  not 
an  adequate  settlement  of  a  claim  for   £180, 
although   the  employer   denied   all   liability 
under  the  act. 

An  order  approving  a  compromise  where 
there  are  minor  children  should  not  be  "by 
consent,"  but  "in  the  opinion  of  the  court, 
the  term  being  for  the  benefit  of  the  in- 
L.R,A.19]6A. 


fant."  Coulson  v.  Worshipful  Company  of 
Drapers  (1911)  5  B.  W.  C.  C.  (Eng.)  136. 

61  Where  the  registrar  has  refused  to 
register  an  agreement  between  the  employer 
and  the  workman  for  substitution  of  a 
lump  sum  for  weekly  payments,  and  the 
matter  has  been  referred  to  the  judge  un- 
der sched.  II.,  1J  9  (d),  all  the  latter  can 
do  is  to  decide  whether  the  agreement 
ought  or  ought  not  to  be  registered.  Morti- 
mer v.  Secretan  [1909]  2  K.  B.  (Eng.)  77, 
78  L.  J.  K.  B.  N.  S.  521,  100  L.  T.  N.  S.  721. 
The  registrar  of  the  court  refused  to  regis- 
ter the  agreement  upon  the  ground  that 
the  lump  sum  was  inadequate,  and  referred 
the  matter  to  the  county  court  judge,  who 
found  it  inadequate  and  assessed  the 
amount  to  be  paid  at  the  sum  which  ad- 
mittedly would  be  payable  if  it  were  to  be 
computed  under  schedule  I.  fl  17  of  the 
act;  but  the  court  of  appeal  held  that  the 
county  court  judge  had  exceeded  his  author- 
ity. 

In  passing  upon  an  agreement  to  pay  and 
accept  a  lump  sum,  it  is  a  misdirection  for 
the  county  court  judge  to  treat  the  maxi- 
mum weekly  payment  which  the  workman 
was  receiving  as  a  permanent  payment 
which  the  employer  was  required  to  pay. 
O'Neill  v.  Anglo-American  Oil  Co.  (1909) 
2  B.  W.  C.  C.  (Eng.)  434. 

The  sheriff's  substitute,  to  whom  the 
adequacy  of  an  agreement  to  receive  week- 
ly payments  by  a  lump  sum  had  been  re- 
ferred by  a  sheriff's  clerk,  has  no  power  to 
require  the  workman  to  consign  the  amount 
of  the  lump  sum,  less  the  sum  which  would 
be  the  amount  of  compensation  prima  facie 
due  to  the  workman  in  the  event  of  the 
registration  of  the  memorandum  being  re- 
fused. M'Vie  v.  Taylor  (1914)  2  Scot.  L.  T. 
342,  51  Scot.  L.  R.  435,  7  B.  W.  C.  C.  891. 

62Lawrie  v.  Brown  [1908]  S.  C.  (Scot.) 
705. 

63  Price  v.  Westminister  Brymbo  Coal  & 
Coke  Co.  [1915]  2  K.  B.   (Eng.)   128,  84  L. 
J.  K.  B.  N.  S.  746,  112  L.  T.  N.  S.  905,  31 
Times  L.  R.  219,   [1915]   W.  N.  69,  59  Sol. 
Jo.  301,  8  B.  W.  C.  C.  257.    In  this  case  the 
workman,    after    agreeing    upon    the    lump 
sum,  died,  and  his  personal  representative 
sought  to  enforce  the  agreement. 

64  Rhodes  v.   Soothill   Wood  Colliery  Co. 


190 


WORKMEN'S  COMPENSATION. 


an  adult  workman  who  has  entered  a 
claim  for  award  from  coming,  before  any 
payment  of  a  weekly  sum  has  been  made, 
to  an  arrangement  by  way  of  compromise 
with  the  employer  that  the  employer 
will  pay  and  he  will  accept  a  sum  of 
money  in  satisfaction  of  all  of  his 
claim.65  But  the  acceptance  of  money 
legally  due  to  a  workman  for  compensa- 
tion is  not  a  consideration  for  a  contract 
relieving  the  employer  from  all  future 
liability.66 

A  release  by  a  seaman  under  §  136 
of  the  merchants  shipping  act  of  1894, 
which  releases  the  shipowner  from  all 
claim  in  respect  to  the  past  voyage,  does 
not  bar  him  from  subsequently  claim- 
ing compensation  under  the  workmen's 
compensation  act  for  injuries  received 
while  on  shipboard,  but  the  incapacity 
from  which  did  not  develop  until  after- 
wards, although  the  seaman  made  no 
reservation  of  such  claim  under  §  60  of 
the  merchants  shipping  act  of  1906.67 

The  mere  fact  that  an  infant,  injured 
in  the  course  of  employment,  signs  a  re- 
lease upon  receiving  payment  of  a  small 
amount,  will  not  prevent  him  from  re- 
covering the  full  compensation  due  him 
under  the  act,  where  he  has  tendered 
back  the  amount  received  from  the  em- 
ployer.68 

Under  schedule  II.  ^  10,  an  injured 
workman  is  not  barred  from  claiming 
compensation  in  the  county  court  by  an 
agreement  which  is  not  registered.69 


1O,  Court  in  which  proceedings  may  be 
brought. 

When  a  workman,  resident  in  Eng- 
land, is  injured  by  an  accident  occurring 
in  England,  but  his  employer  resides  in 
Scotland,  proceedings  for  compensation 
under  the  act  may  be  taken  in  the  county 
court  of  the  district  in  which  the  ac- 
cident occurred,  and  service  of  the  neces- 
sary notices  may  be  effected  by  reg- 
istered post.70 

11.  Deductions  from  awards. 

Under  schedule  II.  §  14,  where  the  ar- 
bitrator had  fixed  the  amount  of  a  lump 
sum  to  be  paid  in  redemption  of  a  week- 
ly payment,  and  the  employer  admit- 
ted that  a  less  sum  was  due,  but  paid 
the  greater  sum  into  court  and  appealed 
the  case,  an  application  by  the  work- 
man for  leave  to  take  a  sum  out  of  the 
amount  on  deposit,  for  use  in  resist- 
ing the  appeal,  will  be  denied.71 

12.  Reference    to    medical   referees. 

Under  \  15  of  the  second  schedule,  the 
arbitrator  may  refer  a  case  to  a  medical 
referee  whenever  the  evidence  as  to  the 
condition  of  the  workman  is  conflicting,72 
But  it  is  incompetent  for  an  arbitrator 
to  remit  to  the  medical  referee  where  no 
evidence  has  been  taken  under  the  ap- 
plication.73 And  the  power  of  the  coun- 
ty court  judge  to  remit  a  case  to  a 
medical  referee  under  schedule  II.  f  15.. 


[1909]  1  K.  B.  (Eng.)  191,  [1908]  W.  N. 
252  [1909]  1  K.  B.  191,  78  L.  J.  K.  B.  N. 
S.  141,  100  L.  T.  N.  S.  14. 

65  In   Ryan    v.   Hartley    [1912]    2   K.    B. 
(Eng.)    150,    5    B.    W.    C.    C.    407,    Cozens- 
Hardy,  M.  R.,  said:      "What  do  the  words 
'liability  to  continue  to  make  that  weekly 
payment'    mean?      They    presuppose    that 
there    has    been    a    weekly    payment    made 
which   would    have   continued   but    for   the 
existence  of  an  agreement  to  pay  a   lump 
sum.     In   my   opinion,   that   clause   has   no 
application   whatever   to   a   case   where,   as 
here,  no  weekly  payment  has  ever  in  fact 
been    made,    even    though    the    gross    sum 
paid  was  a  sum  which  may  be  said  to  have 
been  calculated  with  reference  to  the  work- 
man's weekly  wages." 

66  Hughes   v.   Vothey   Quarry   Co.    (1908; 
C.  C.)  125  L.  T.  Jo.   (Eng.)  471,  1  B.  W.  C. 
C.  416. 

67Buls  v.  The  Teutonic  [1913]  3  K.  B. 
(Eng.)  695,  82  L.  J.  K.  B.  N.  S.  1331,  109 
L.  T.  N.  S.  127,  29  Times  L.  R.  675,  [1913] 
W.  N.  238,  6  B.  W.  C.  C.  653. 

68Darnley  v.  Canadian  P.  R.  Co.  (1908) 
14  B.  C.  15,  2  B.  W.  C.  C.  505. 

69  Bates  v.  Holding   [1914]   W.  C.  &  Ins. 
Rep.   (Eng.)   6,  7  B.  W.  C.  C.  80. 

70  Rex   v.   Owen    [1902]    2   K.   B.    (Eng.) 
436,  71  L.  J.  K.  B.  N.  S.  770,  87  L.  T.  N.  S. 
298,  18  Times  L.  R.  701. 

L.R.A.1916A. 


71  Marshall    v.    Prince     [1914]     3    K.    B. 
(Eng.)   1047,  [1914]  W.  N.  330,  7  B.  W.  C. 
C.  381.     Swinfen-Eady,  L.  R.,  said:     "It  is 
a  bad  principle  to  order  money  to  be  paid 
out    of    court    in    respect    of    future    costs 
when  no  costs  had  been  incurred  up  to  that 
time." 

72  The  county  court  judge  is  entitled  to 
refer  a  case  in  which  the  medical  evidence 
is   conflicting,  to   a   medical   referee.     Hen- 
ricksen  v.   The   Swanhilda    (1911)    4   B.  W, 
C.  C.    (Eng.)   233. 

It  is  competent  for  the  arbitrator,  with 
the  view  of  fixing  the  weekly  payment  in 
the  application  for  review,  to  remit  to  a 
|  medical  practitioner  appointed  for  the  pur- 
poses of  the  act  to  report  as  to  the  condi- 
tion of  the  workman.  Niddrie  &  B.  Coal 
Co.  v.  M'Kay  (1903)  5  Sc.  Sess.  Cas.  5th 
series  (Scot.)  1121. 

73  Gray   v.   Carroll    [1910]    S.   C.   700.   47 
Scot.  L.  R.  646,  3  B.  W.  C.  C.  572. 

"A  medical  referee  ought  to  have  before 
him  evidence  given  by  the  doctors  on  both 
sides,  and  when  the  judge  is  not  able  to 
decide  the  case  by  reason  of  a  conflict  of 
]  evidence,  he  must  refer  it  to  the  medical 
referee;  but  to  refer  it  to  the  referee  with- 
out having  heard  the  evidence  makes  it  im- 
possible for  the  order  to  stand."  Cozens- 
Hardy,  M.  R.,  in  Peill  v.  Payne  (1915)  8 
B.  W.  C.  C.  (Eng.)  111. 


ACT  OF  1900. 


191 


extends  to  a  case  where  a  workman  had 
been  killed,  and  there  was  conflicting 
medical  evidence  as  to  the  cause  of  the 
death.74  An  agreement  in  advance  to 
submit  any  dispute  to  the  decision  of  a 
medical  referee  is  void.75 

Notwithstanding  a  reference  to  the 
medical  referee,  the  county  judge  should 
form  an  independent  judgment,  and  is 
not  bound  by  the  referee's  report.76 

The  report  of  a  medical  referee  ap- 
pointed by  an  arbitrator  is  intended  for 
the  use  of  the  arbitrator  only;  but  it 
is  in  his  discretion  to  allow  respondents 
to  see  the  report  and  make  a  copy  of 
it.77 

A  medical  referee  appointed  under  |  5 
should  not  sit  with  the  county  court 
judge  as  assessor  on  an  issue  upon  which 
he  has  already  given  an  opinion  as  medi- 
cal referee.78 

13.  Provisions    applicable    to    Scotland 
only. 

Where,  under  schedule  II.  (17),  the 
case  is  remitted  to  the  sheriff's  substitute 
to  find  whether  the  notice  of  the  ac- 
cident was  given  as  soon  as  practicable, 
the  arbitrator  may  take  further  proof, 
and  may  examine  the  doctor  who  at- 
tended the  applicant  during  the  illness 
following  the  accident.79 

Under  the  act  of  1897,  the  decision  of 
either  division  of  the  court  of  session 
was  final  and  no  appeal  lies  to  the  House 
of  Lords ;  80  but,  under  the  express  terms 
of  the  act  of  1906,  schedule  II.  1 17,  such 
an  appeal  does  lie. 

XXII.  Act  of  190O. 
a.  Text  of  the  act. 

Section  1. — (1)  From  and  after  the 
commencement  of  this  act,  the  work- 
men's compensation  act  1897  shall  ap- 
ply to  the  employment  of  workmen  in 
agriculture  by  any  employer  who  habit- 
ually employs  one  or  more  workmen  in 
such  employment. 


(2)  Where  any  such  employer  agrees 
with  a  contractor  for  the  execution  by 
or  under  that   contractor  of  any  work 
in  agriculture,  $  4  of  the  workmen's  com- 
pensation act  1897  shall  apply  in  respect 
to  any  workmen  employed  in  such  work 
as  if  that  employer  were  an  undertaker 
within  the  meaning  of  that  act.    Provid- 
ed, that,  where  the  contractor  provides 
and  uses  machinery  driven  by  mechanical 
power,    for    the    purpose    of    threshing, 
ploughing,  or  other  agricultural  work,  he, 
and    he    alone,    shall    be    liable    under 
this    act    to    pay    compensation    to    any 
workman  employed  by  him  on  such  work. 

(3)  Where  any  workman  is  employed 
by  the  same  employer  mainly  in  agricul- 
tural, but  partly  or  occasionally  in  other, 
work,  this  act  shall  apply  also   to   the 
employment    of    the    workman    in    such 
other  work. 

The  expression  "agriculture"  includes 
horticulture,  forestry,  and  the  use  of 
land  for  any  purpose  of  husbandry,  in- 
clusive of  the  keeping  or  breeding  of  live 
stock,  poultry,  or  bees,  and  the  growth 
of  fruit  and  vegetables. 

Section  2 — .  This  act  may  be  cited  as 
the  workmen's  compensation  act  1900, 
and  shall  be  read  as  one  with  the  work- 
men's compensation  act  1897,  and  that 
act  and  this  act  may  be  cited  together 
as  the  workmen's  compensation  acts  1897 
and  1900. 

Section  3.  This  act  shall  come  into  op- 
eration on  the  1st  day  of  July,  1901. 

This  statute  is  supplanted  by  the  gen- 
eral act  of  1906. 

b.  Effect  of  these  provisions. 

The  act  of  1900  had  received  but  little 
attention  from  the  courts  before  it  was 
repealed  by  the  act  of  1906. 

Threshing  was  held  to  be  agricultural 
work  within  the  meaning  of  this  act.81 
So,  a  workman,  although  a  proportion  of 
his  time  acting  as  a  game  keeper,  might 
be  found  to  be  engaged  in  agricultural 
employment  within  the  meaning  of  the 


7«Carolan  v.  Harrington  [1911]  2  K.  B. 
(Eng.)  733,  80  L.  J.  K.  B.  N.  S.  1153,  105 
L.  T.  N.  S.  271,  27  Times  L.  R.  486,  4  B. 
W.  C.  C.  253. 

75  A  clause  in  an  agreement  between  the 
employer  and  the  workman  providing  that 
if  the  workman  refuse  to  submit  himself 
to  a  medical  referee  on  any  questions  sub- 
sequently arising  as  to  his  condition  or 
fitness  to  work,  he  would  forfeit  all  further 
claim  to  compensation,  is  void.  British 
&  S.  A.  Steam  Nav.  Co.  v.  Neil  (1910)  3 
B.  W.  C.  C.  (Eng.)  413. 

76Quinn  v.  Flynn  (1910)  44  Ir.  Law 
Times,  183,  3  B.  W.  C.  C.  594;  Jackson  v. 
Scotstoun  Estate  Co.  fl911]  S.  C.  564,  48 
L.R.A.1916A. 


Scot.  L.  R.  440,  4  B.  W.  C.  C.  381;  Dowds 
v.  Bennie  (1902)  5  Sc.  Sess.  Cas.  5th  series 
(Scot.)  268. 

77Bowden  v.  Barrow  Bros.  (1901;  C.  C.) 
3  W.  C.  C.  (Eng.)  215. 

78Wallis  v.  Soutter  [1915]  W.  N.  (Eng.) 
68,  59  Sol.  Jo.  285,  8  B.  W.  C.  C.  130. 

79  Park    v.   Coltness    Iron    Co.    (1913)    50 
Scot.  L.  R.  926,  2  Scot.  L.  T.  232,  6  B.  W. 
C.   C.   892. 

80  Osborne  v.  Barclay  [1901]  A.  C.  (Eng.) 
269,  85  L.  T.  N.  S.  286. 

81  Proctor  v.  Cumisky   (1904)   6  Sc.  Sess. 
Cas.  5th  series,  832,  41  Scot.  L.  R.  636,  12 
Scot.  L.  T.  172. 


192 


WORKMEN'S  COMPENSATION. 


act,  where  he  also  lent  a  hand  to  other 
duties  of  a  strictly  agricultural  charac- 
ter.82 But  the  mere  keeping  of  horses 
and  cutting  up  hay  for  them  by  a  hotel 
proprietor  was  not  agricultural  work 
within  the  meaning  of  the  statute.83  So, 
the  work  of  a  man  hired  by  a  saw  miller 
to  cut  down  trees  and  cart  them  to  a  saw- 
mill was  not  forestry.84  A  groom,  look- 
ing after  horses  kept  in  stables  in  an 
inclosed  yard,  was  not  within  the  act, 
since  the  "land,"  as  used  in  the  act, 
means  open  land.85 

The  workman  need  not  be  on  the  prem- 
ises owned  by  the  employer  to  be  within 
the  protection  of  the  act  of  1900.86 

XXIII.  Employments  to  which  the  act 
of  1S97  ivas  applicable. 

a.  Text  of  §   7  of  the  act  of  1897. 

As  has  been  stated,  the  act  of  1907  was 
restricted  to  certain  employments  which 
were  enumerated  in  §  7.  Although  the 
provision  is  no  longer  in  force  in  Great 
Britain,  many  of  the  colonial  acts  and 
of  the  American  statutes  are  applica- 
ble only  to  the  so-called  extra-hazardous 
employments,  and  the  cases  construing 
this  section  of  the  earlier  act  will  be  of 
great  value  in  arriving  at  the  proper 
construction  of  those  acts. 

The  text  of  §  7  was  as  follows : 

(1)  This  act  shall  apply  only  to  em- 
ploj7ment  by  the  undertakers  as  herein- 
after defined,  on  or  in  or  about  a  railway, 
factory,    mine,    quarry,    or    engineering 
work,    and   to    employment    by   the   un- 
dertakers as  hereinafter  defined,  on  in 
or  about  any  building  which  exceeds  30 
feet  in  height  and  is  either  being  con- 
structed or  repaired  by  means  of  a  scaf- 
folding, or  being  demolished,  or  on  which 
machinery   driven   by   steam,    water,   or 
other   mechanical  power,   is   being  used 
for  the  purpose  of  the  construction,  re- 
pair, or  demolition  thereof. 

(2)  In  this  act  "railway"  means  the 
railway  of  any  railway  company  to  which 
the  regulation  of  railways  act  1873  ap- 
plies, and  includes  a  light  railway  made 
under  the  light  railways  act  1896;  and 
"railway"  and  "railway  company"  have 


the  same  meaning  as  in  the  said  acts  of 
1873  and  1896;  "factory"  has  the  same 
meaning  as  in  the  factory  and  work- 
shop acts  1878  to  1891,  and  also  in- 
cludes any  dock,  wharf,  quay,  ware- 
house, machinery,  or  plant,  to  which  any 
provision  of  the  factory  acts  is  applied 
by  the  factory  and  workshop  act  1895, 
and  every  laundry  worked  by  steam, 
water,  or  other  mechanical  power; 
"mine"  means  a  mine  to  which  the  coal 
mines  regulation  act  1887,  or  the  metal- 
liferous mines  regulation  act  1872,  ap- 
plies ;  "quarry"  means  a  quarry  under  the 
quarries  act  1894;  "engineering  work" 
means  any  work  of  construction  or  al- 
teration or  repair  of  a  railroad,  harbor, 
dock,  canal,  or  sewer,  and  includes  any 
other  work  for  the  construction,  alter- 
ation, or  repair  of  which  machinery  driv- 
en by  steam,  water  or  other  mechanical 
power  is  used;  "undertakers"  in  the  case 
of  a  railway  means  the  railway  company; 
in  the  case  of  a  factory,  quarry,  or  laun- 
dry means  the  occupier  thereof,  within 
the  meaning  of  the  factory  and  work- 
shop acts  1878  to  1895;  in  the  case  of  a 
mine  means  the  owner  thereof  within 
the  meaning  of  the  coal  mines  regula- 
tion act  1887,  or  the  metalliferous  mines 
regulation  act  1872,  as  the  case  may  be; 
in  the  case  of  an  engineering  work, 
means  the  person  undertaking  the  con- 
struction, alteration,  or  repair;  and  in 
the  case  of  a  building  means  the  persons 
undertaking  the  construction,  repair,  or 
demolition;  "employer"  includes  any 
body  of  persons,  corporate  or  unincor- 
porate,  and  the  legal  personal  represen- 
tative of  a  deceased  employer;  ''work- 
man" includes  every  person  who  is 
engaged  in  an  employment  to  which  this 
act  applies,  whether  by  way  of  manual 
labor  or  otherwise,  and  whether  his 
agreement  is  one  of  service  or  appren- 
ticeship or  otherwise,  and  is  expressed  or 
implied,  is  oral  or  in  writing.  Any  ref- 
erence to  a  workman  who  has  been  in- 
jured shall,  where  the  workman  is 
dead,  include  a  reference  to  his  legal 
personal  representative,  or  to  his  depend- 
ents, or  other  person  to  whom  compensa- 
tion is  payable;  "dependents"  means  (a) 


82  The  county  court  judge  may  hold  that 
the  applicant  was  engaged  in  agricultural 
employment  within  the  act,  where  the  evi- 
dence showed  that  he  acted  as  game  keeper 
for  three  months  in  the  year,  but  also  lent 
a  hand  at  hay  harvest  and  at  corn  harvest, 
and  made  corn  ricks  and  straw  ricks,  helped 
with  the  threshing,  and  did  work  like  other 
laborers.  Smith  v.  Coles  [1905]  2  K.  B. 
(Eng.)  827,  54  Week.  Rep.  81,  22  Times  L. 
R.  5,  75  L.  J.  K.  B.  N.  S.  16,  93  L.  T.  N.  S. 
754. 
L.R.A.1916A. 


83  Bolt  v.  Hey  wood  (1903;  C.  C.)  114  L. 
T.  Jo.  (Eng.)  294,  5  W.  C.  C.  151. 

8«Meally  v.  M'Gowan  (1902)  4  Sc.  Sess. 
Cas.  5th  series,  883,  39  Scot.  L.  R.  662,  10 
Scot.  L.  T.  145. 

85  Grant  v.  Ward  (1904;  C.  C.)  7  W.  C. 
C.  (Eng.)  128. 

seSmithers  v.  Wallis  [1903]  1  K.  B. 
(Eng.)  200,  72  L.  J.  K.  B.  N.  S.  57,  67  J.  P. 
381.  51  Week.  Rep.  261,  87  L.  T.  N.  S.  556, 
19  Times  L.  R.  111. 


EMPLOYMENTS  WITHIN  ACT  OF  1897. 


193 


in  England  and  Ireland,  such  members 
of  the  workman's  family  specified  in  the 
fatal  accidents  act  1846,  as  were  wholly 
or  in  part  dependent  upon  the  earnings 
of  the  workman  at  the  time  of  his  death; 
and  (b)  in  Scotland,  such  of  the  per- 
sons entitled  according  to  the  law  of 
Scotland  to  sue  the  employer  for  dam- 
ages or  solatium  in  respect  of  the  death 
of  the  workman,  as  were  wholly  or  in 
part  dependent  upon  the  earnings  of  the 
workman  at  the  time  of  his  death. 

(3)  A  workman  employed  in  a  factory 
which  is  a  shipbuilding  yard  shall  not 
be  excluded  from  this  act  by  reason  only 
that  the  accident  arose  outside  the  yard 
in  the  course  of  his  work  upon  a  ves- 
sel in  any  dock,  river,  or  tidal  water 
near  the  yard. 

b    Scope  and  effect  of  these  provisions 
ir,  general. 

From  the  provisions  above  set  out  it 
will  be  seen  that  the  right  of  the  serv- 
ant to  recover  compensation  under  the 
act  was  made  to  depend,  in  the  majority 
of  instances,  upon  two  distinct  tests, 
viz:  (1)  physical  contiguity  with  re- 
spect to  the  locality  in  which  one  or 
other  of  certain  specified  classes  of  busi- 
ness are  carried  on;  and  (2)  the  charac- 
ter of  the  operations  in  which  the 
servant  is  engaged.  In  any  case  in  which 
the  former  of  these  tests  is  controlling, 
the  essential  subject  of  inquiry  is  the 
import  of  the  phrase  "on  or  in  or  about." 
The  applicability  of  the  latter  test  is 
a  question  which  hinges  upon  the  conno- 
tation of  the  various  terms  used  to  desig- 
nate the  various  kinds  of  business  which 
fall  within  the  purview  of  the  act. 

c.  Meaning  of  the  phrase  "on  or  in  or 
about." 

1.  In  general. 

The  phrase  "on  or  in  or  about,"  con- 


tained in  §  7  of  the  act  of  1897  (and 
which  is  also  used  in  §  4,  subsec.  4,  in  the 
act  of  1906,  with  reference  to  compensa- 
tion recoverable  by  servants  of  contrac- 
tors), has  been  the  subject  of  consider- 
able controversy.  The  words  "on"  and 
"in"  are  not  difficult  or  ambiguous,  but 
the  word  "about"  adds  an  element  which 
has  caused  a  considerable  difference  of 
opinion. 

It  certainly  enlarges  the  application 
of  the  act,87  and  it  has  been  spoken  of  as 
an  "elastic  word." 88  The  phrase  as  a 
whole  involves  some  idea  of  physical 
proximity,89  and  has  reference  to  an 
area.90  The  limitation  of  the  area  is 
the  point  at  issue  in  practically  all  of 
the  cases  in  which  the  question  has 
arisen. 

Although  the  same  meaning  attaches 
to  the  phrase  "on  or  in  or  about,"  used 
in  connection  with  a  factory,  or  with 
any  of  the  other  terms  used  in  the  stat- 
ute,91 it  has  nevertheless  been  deemed 
wise  to  group  the  cases  construing  this 
phrase  according  as  they  deal  with  a  rail- 
road, factory,  or  other  place  mentioned 
in  the  section. 

2.  On,    in   or   about   a    "railroad," 

In  England  the  accepted  doctrine  was 
that  no  part  of  the  premises  of  a  rail- 
way company  can  be  regarded  as  being 
"used  for  purposes  of  public  traffic," 
within  the  meaning  of  the  regulation 
of  railways  act,  unless  some  one  of  the 
processes  directly  connected  with  the 
operation  of  the  trains  was  conducted 
thereon.92  Another  view  prevailed  in 
Scotland,  a  servant  having  been  allowed 
to  recover  where  the  accident  occurred 
in  a  city  within  the  area  of  a  yard 
where  the  horses  used  by  a  railroad 
company  for  collecting  and  delivering 


87  In  Powell  v.  Brown  [1899]  1  Q.  B. 
(Eng.)  157,  68  L.  J.  Q.  B.  N.  S.  151,  47 
Week.  Rep.  145,  79  L.  T.  N.  S.  631,  15 
Times  L.  R.  65,  it  was  held  that  the  word 
"about"  must  be  construed  as  enlarging  the 
application  of  the  statute  over  what  it 
would  have  been  had  only  the  words  "on 
or  in"  been  used,  and  may  embrace  work 
done  in  close  propinquity  to  the  factory. 

88Fenn  v.  Miller  [1900]  1  Q.  B.  (Eng.) 
788,  69  L.  J.  Q.  B.  N.  S.  439,  82  L.  T.  N.  S. 
284,  16  Times  L.  R.  265,  2  W.  C.  C.  55,  64 
J.  P.  356.  48  Week.  Rep.  369. 

89  Rogers  v.  Cardiff  Corp.  [1905]  2  K.  B. 
(Eng.)  832,  75  L.  J.  K.  B.  N.  S.  22,  93  L. 
T.  N.  S.  683,  22  Times  L.  R.  9,  8  W.  C.  C. 
51,  54  Week.  Rep.  35,  70  J.  P.  9,  4  L.  G. 


R.  1. 

L.R.A.1916A. 


13 


90  Atkinson  v.  Lumb  [1903]  1  K.  B. 
(Eng.)  861,  72  L.  J.  K.  B.  N.  S.  460,  88  L. 
T.  N.  S.  789,  19  Times  L.  R.  412,  5  W.  C. 
C.  106,  67  J.  P.  414,  51  Week.  Rep.  516. 

9iPattison  v.  White  (1904)  6  W.  C.  C. 
(Eng.)  61,  20  Times  L.  R.  775. 

In  Back  v.  Dick  [1906]  A.  C.  (Eng.) 
325,  8  W.  C.  C.  40,  Lord  Robertson  said: 
"It  was  not  in  the  end  disputed  at  the 
bar  that  this  is  so  in  the  case  of  a  factory, 
and  the  other  things  mentioned  side  by  side 
with  factories  and  'engineering  work,'  to 
which,  in  common  with  'engineering  work,' 
the  prepositions  of  locality  'in,  on,  or  about' 
are  made  to  apply." 

92  This  doctrine  was  assumed  to  involve 
the  consequence  that  no  recovery  could 
be  had  under  the  compensation  act  where 


194 


WORKMEN'S  COMPENSATION. 


goods  were  shod,93  and  where  the  claim- 
ant was  a  carter  whose  business  it  was  to 
deliver  to  consignees  goods  received  at 
one  of  the  stations  of  his  employers,  a 
railway  company.94  Of  these  two  the- 
ories, the  latter  would  seem  to  be  the 
proper  one.  The  English  decision  ig- 
nores the  plain  and  literal  meaning  of 
the  words  "on  or  in  or  about,"  and 
fastens  on  them  a  restricted  significance 
which  is  not  justified  by  any  of  the 
language  employed  in  the  act  itself. 

An  injury  to  a  carter  engaged  in  cart- 
ing goods  from  a  station,  received  when 
his  horse  bolted  just  outside  the  station, 
and  dashed  into  a  shop  315  yards  away, 
did  not  occur  "in  or  on  or  about"  a 
railroad.95  Nor  can  any  compensation 
be  recovered  under  the  act  where  the 
conductor  of  a  freight  train  met  with 
an  accident  about  three  quarters  of  a 
mile  from  the  main  line  of  a  railway 
from  which  a  private  siding  belonging 
to  a  trading  company  diverged.96 


3.  —a    "factory." 

A  workman  may  be  employed  "on  or 
in  or  about"  a  factory,  although  he  is  on 
the  street  adjoining  the  factory,  if  the 
work  he  is  performing  is  a  part  of  the 
factory  business.97  And  also  where  he 
was  employed  in  a  building  adjoining  the 
factory  proper,  although  at  some  dis- 
tance from  it.98  But  where  a  workman 
engaged  to  cart  material  to  or  from  a 
factory  is  injured  while  upon  the  road 
and  at  some  distance  from  the  factory, 
it  has  been  held  in  several  cases  that 
he  is  not  injured  "in  or  on  or  about" 
the  factory.99  And  an  employee  in  a 
factory,  whose  duty  in  part  it  was  to 
take  goods  from  the  factory  to  a  rail- 
road station,  is  not  employed  "in  or  on 
or  about"  the  factory  while  at  the  rail- 
road station.1  Under  the  Nova  Scotia 
act,  the  term  "plant"  includes  teams 
which  are  used  for  the  delivery  of  the 
output  of  the  factory.2 

An  employee  at  work  on  a  gas  main 


the  accident  occurred  in  a  railway  refresh- 
ment room,  when  the  only  entrance  for  the 
public  was  from  the  station  platform. 
Milner  v.  Great  Northern  R.  Co.  [1900]  1 
Q.  B.  (Eng.)  795,  82  L.  T.  N.  S.  187,  69 
L.  J.  Q.  B.  N.  S.  427,  64  J.  P.  291,  48  Week. 
Rep.  387,  16  Times  L.  R.  249. 

93  Caledonian  R.  Co.  v.  Breslin  (1900)  2 
Sc.  Sess.  Cas.  5th  series,  1158,  37  Scot.  L. 
R.  873,  8  Scot.  L.  T.  125. 

9*Devine  v.  Caledonian  R.  Co.  (1899)  1 
Sc.  Sess.  Cas.  5th  series,  1105,  36  Scot.  L. 
R.  877,  7  Scot.  L.  T.  99. 

95Bathgate  v.  Caledonian  R.  Co.  (1901) 
4  Sc.  Sess.  Cas.  5th  series,  313,  39  Scot. 
L.  R.  246,  9  Scot.  L.  T.  334. 

96Brodie  v.  North  British  R.  Co.  (1900) 
3  Sc.  Sess.  Cas.  5th  series,  75,  38  Scot.  L. 
R.  38,  8  Scot.  L.  T.  248.  With  respect  to 
this  case  it  should  be  observed  that  the 
siding  itself  was  not  a  "railway"  for  the 
purposes  of  the  act,  as  it  was  not  one  to 
which  the  regulation  of  railways  act  1873, 
referred  to  in  §  7,  subsec.  2,  was  applicable. 

97  Recovery  has  been  allowed  where  an 
employee  was  injured  while  loading  a  cart 
belonging  to  the  owners  of  the  factory, 
standing  in  a  street  close  to  the  entrance 
to  the  factory  yard,  in  a  place  where  it  was 
usually  loaded.  Powell  v.  Brown  [1899] 
1  Q.  B.  (Eng.)  157,  68  L.  J.  Q.  B.  N.  S.  151, 
79  L.  T.  N.  S.  631,  47  Week.  Rep.  145,  15 
Times  L.  R.  65. 

And  where  a  workman  employed  as  a 
quay  laborer  at  a  wharf  was  injured  on  the 
street  outside  the  wharf  shed,  while  en- 
gaged in  removing  girders  to  the  side  of  a 
steamer.  Strain  v.  Sloan  (1901)  3  Sc.  Sess. 
Cas.  5th  series,  663,  38  Scot.  L.  R.  475,  8 
Scot.  L.  T.  498. 

In  a  case  where  a  railway  carter  was  in- 
jured while  taking  goods  from  a  factory 
to  a  dray,  in  which  they  were  to  be  con- 
veyed to  the  station  of  a  railway,  it  was 
L.R.A.1916A. 


held  that  the  owners  of  the  factory  were 
"undertakers,"  and  that  the  accident  oc- 
curred while  the  carter  was  employed  "in 
or  about"  the  factory.  McGovern  v.  Cooper 
(1901)  4  Sc.  Sess.  Cas.  5th  series  249,  39 
Scot.  L.  R.  102,  9  Scot.  L.  T.  270. 

98  As  where  a  car  driver  of  a  cable  rail- 
way company  was  injured,  while  oiling  his 
car  in  the  car  shed,  374  feet  distant  from  a 
machine  room  adjoining  the  shed  in  which 
grips  and  other  parts  of  the  cars  were  re- 
paired.    Mooney  v.  Edinburgh  &  D.  Tram- 
ways Co.  (1901)  4  Sc.  Sess.  Cas.  5th  series, 
390,  38  Scot.  L.  R.  260,  9  Scot.  L.  T.  366. 

99  Recovery    has    been    disallowed    where 
a   carter,   employed  by   the   occupiers   of   a 
factory  to  cart  goods  to  and  from  the  fac- 
tory, was  injured  when  he  was  about  a  mile 
and  a  half  distant  from  the  factory.    Lowth 
v.  Ibbotson   [1899]   1  Q.  B.   (Eng.)   1003,  80 
L.  T.  N.  S.  341,  68  L.  J.  Q.  B.  N.  S.  465,  47 
Week.  Rep.  506,  15  Times  L.  R.  264. 

And  where  a  cart  used  to  carry  timber 
from  a  factory  upset  about  2  miles  away 
from  the  factory,  and  injured  an  employee. 
Bell  v.  Whitton  (1899)  1  Sc.  Sess.  Cas. 
5th  series,  942,  36  Scot.  L.  R.  754,  7  Scot. 
L.  T.  59. 

And  where  a  laborer,  whose  duty  it  was 
to  fetch  water  in  a  cart  from  a  brook  at 
some  distance  along  the  main  road,  for  the 
use  of  a  factory,  was  injured  while  return- 
ing with  the  cart,  at  a  spot  about  110  to 
160  yards  distant  from  the  engine  and 
mortar-mill,  owing  to  the  horse  running 
away.  Fenn  v.  Miller  [1900]  1  Q.  B.  (Eng.) 
788,  82  L.  T.  N.  S.  284,  69  L.  J.  Q.  B.  N.  S. 
439,  64  J.  P.  356,  48  Week.  Rep.  369,  16 
Times  L.  R.  265. 

1  Spencer  v.  Harrison   (1908;   C.  C.)    1  B. 
W.  C.  C.  (Eng.)  76. 

2  In      O'Toole      v.      Brandram-Henderson 
(1915)  48  N.  S.  293,  it  was  held  that  the  de- 
pendents of  a  teamster  who  was  killed  while 


MINE— ENGINEERING  WORK. 


195 


a  quarter  of  a  mile  from  the  gas  works 
is  not  at  work  "on  or  in  or  about  a  fac- 
tory."3 

No  compensation  is  recoverable  where 
the  workman  was  injured  in  the  employ- 
ment of  a  firm  of  ship  repairers,  while 
repairing  a  ship  in  a  public  dock  at  a 
distance  from  his  employer's  factory  of 
550  yards  in  a  direct  line,  and  about  a 
mile  by  road.4 

A  workman  at  work  in  a  shed  situated 
about  half  a  mile  from  the  defenders' 
works,  and  having  no  direct  connection 
therewith  by  rail,  and  no  steam,  water, 
or  other  mechanical  power  being  used 
therein,  is  not  employed  "on  or  in  or 
about"  the  defenders'  factory,  and  is  not 
entitled  to  compensation  for  injuries 
while  so  engaged.5 

The  expression  "employment  by  the 
undertakers  .  .  .  on  or  in  or  about  a 
.  .  .  factory"  has  been  held  to  mean 
employment  by  the  undertakers  on,  in, 
or  about  their  own  factory.6 

4.  —a  "mine." 

A  workman  is  employed  "in  or  on  or 


about"  a  mine  where  he,  although  not  in 
the  mine,  is  doing  work  connected  there- 
with and  only  a  short  distance  away.7 
In  one  case  it  was  expressly  held  that 
an  accident  did  not  occur  in  or  on  or 
about  a  mine,  because  it  occurred  three 
fourths  of  a  mile  from  the  mine.8  In  an- 
other case,  a  distance  of  400  yards  was 
sufficient  to  take  the  workman  out  of 
the  protection  of  the  statute,  where  a 
portion  of  the  property  occupying  such 
space  did  not  belong  to  the  mine  own- 
er.9 

Where  an  injury  was  received  by  a 
workman  who,  after  the  conclusion  of 
his  day's  work,  was  walking  home  along 
a  private  railway  belonging  to  his  em- 
ployer, and  was  run  over  at  a  point  about 
230  yards  from  the  place  where  he  was 
working,  compensation  was  denied.10 

5.  — "engineering  work." 

The  phrase  "engineering  work"  indi- 
cates locality  the  same  as  the  other 
words  used  in  the  same  connection, — rail- 


drawing  the  product  of  a  factory  at  some 
distance  from  the  factory  are  entitled  to 
compensation,  since  the  team  and  truck 
which  he  was  driving  must  be  considered 
as  a  part  of  the  employer's  plant,  and  the 
fact  that  he  was,  at  the  time  of  the  in- 
jury, at  a  considerable  distance  away  from 
the  factory  proper,  does  not  deprive  such 
dependents  of  the  right  to  compensation. 

3  Spacey    v.    Dowlais    Gas    &    Coke    Co. 
[1905]   2  K.  B.   (Eng.)    879,  75  L.  J.  K.  B. 
N.  S.  5,  93  L.  T.  N.  S.  685,  22  Times  L.  R. 
29,  54  Week.  Rep.  138. 

4  Barclay  v.  M'Kinnon   (1901)   3  Sc.  Sess. 
Cas.  5th  series,  436,  38  Scot.  L.  R.  321,  8 
Scot.  L.  T.  404,  appeal  dismissed  on  ques- 
tion of  jurisdiction  in   [1901]  A.  C.   (Eng.) 
269,  85  L.  T.  N.  S.  286,  4  W.  C.  C.  149. 

5  Ferguson  v.  Barclay  Sons  &  Coy  (1902) 
5  Sc.   Sess.  Cas.   5th   series,   105,  40   Scot. 
L.  R.  58,  10  Scot.  L.  T.  350. 

8  A  workman,  therefore,  who  is  sent  by 
his  employers  on  their  business  to  the  fac- 
tory of  a  third  person,  and  is  there  injured 
by  accident,  is  not  entitled  to  compensation 
under  the  act.  Francis  v.  Turner  Bros. 
[1900]  1  Q.  B.  (Eng.)  478,  69  L.  J.  Q.  B. 
N.  S.  182,  81  L.  T.  N.  S.  770,  16  Times  L. 
R.  105,  2  W.  C.  C.  61,  64  J.  P.  53,  48  Week. 
Rep.  228;  Wrigley  v.  Whittaker  [1902]  A. 
C.  (Eng.)  299,  71  L.  J.  K.  B.  N.  S.  600,  66 
J.  P.  420,  50  Week.  Rep.  656,  86  L.  T.  N.  S. 
775,  18  Times  L.  R.  559. 

7  Recovery  has  been  allowed  where  a 
servant  was  injured  while  engaged  in  blast- 
ing boulders,  for  the  purpose  of  forming  a 
road  to  be  used  in  the  operation  of  a 
mine  which  was  being  opened  a  few  yards 
away.  Ellison  v.  Longden  (1901)  18  Times 
L.  R.  (Eng.)  48. 

And  where  a  brakeman  in  the  service  of 
L.R.A.1916A. 


a  colliery  company  was  injured  while  coup- 
ling cars  on  a  siding  belonging  to  the  com- 
pany. Monaghan  v.  United  Collieries 
(1900)  3  Sc.  Sess.  Cas.  5th  series,  149,  38; 
Scot.  L.  R.  92,  8  Scot.  L.  T.  261. 

An  employee  engaged  in  screening  tailings, 
in  a  tailings  area  which  was  located  about 
three-quarters  of  a  mile  from  the  mining, 
lease  is  "employed  in  or  about  a  mine."" 
Taylor  v.  The  Cecil  Syndicate  (1906)i 
Queensl.  St.  Rep.  324. 

A  drum-house  and  sidings  on  a  private 
line  of  railroad  which  connects  the  mine 
with  a  main  line  of  railroad  is  on  or  in  or 
about  a  "mine,"  although  located  at  a  dis- 
tance of  800  yards  from  the  mine.  Ander- 
son v.  Lochgelly  Iron  &  Coal  Co.  (1904)  7 
Sc.  Sess.  Cas.  5th  series  (Scot.)  187. 

8  Recovery  has  been  disallowed  where  an 
engine  driver  in  the  employ  of  colliery  own- 
ers was  killed  about  f  of  a  mile  from  the 
pit  mouth  of  the  colliery,  while  his  engine- 
was  drawing  a  coal  train  to  the  depot  where 
the  coal  was  stored.     Turnbull  v.  Lambton. 
Collieries  Co.   (1900)   82  L.  T.  N.  S.   (Eng.> 
589,  16  Times  L.  R.  369,  64  J.  P.  404. 

9  A  workman  employed  as  a  carter  at  a 
coal    mine,    who    sustained    fatal    injuries 
while  transferring  timber  to  a  colliery  cart 
from  a  railway  wagon  at  a  railway  siding 
belonging  to   and   in   the   occupation   of   a 
railway   company,   at   a   distance   of   about 
400  yards  from  the  pit, — the  distance  being 
made  up  of  (1)  railway  siding  (123  yards), 
(2)   the  breadth  of  a  public  road,  and    (3) 
a  private  cart  road  leading  to  the  pit  (259 
yards)    — ,  was  not  injured  in  the  course 
of  employment  "on  or  in  or  about  a  mine." 
Coylton  Coal  Co.  v.  Davidson   (1905)   7  Sc. 
Sess.  Cas.  5th  series   (Scot.)   727. 

10  Caton  v.  Summerlee  &  M.  Iron  &  Coat 


196 


WORKMEN'S  COMPENSATION. 


way,  factory,  mine,  and  quarry.11  To 
come  within  the  statute,  the  workman 
must  be,  at  the  time  of  the  accident, 
"on  or  in  or  about"  the  locality  of  the 
engineering  work.12 

A  piece  of  vacant  land  adjoining  a 
street,  which  was  being  used  for  pre- 
paring materials  for  constructing  a 
street,  is  "on  or  in  or  about"  the  street.13 

The  driver  of  a  tower  wagon  used  to 
repair  a  tramway  is  on,  in,  or  about  en- 
gineering work  while  driving  from  a 
place  where  repairs  had  been  made  to  an- 
other place  where  repairs  were  also 
wanted.14 

6.  —"premises  on  which  principal  has 
undertaken  to  execute  the  work." 

A  workman  employed  by  a  subcon- 
tractor to  cart  away  rubbish  from  where 
a  street  is  being  paved  is  not  injured 
"on  or  in  or  about  the  premises  on  which 
the  principal  had  undertaken  to  execute 
the  work,"  where  he  falls  from  his  cart  2 
miles  from  the  scene  of  the  paving  op- 
eration.15 


d.  Buildings  being  constructed  or  re- 
paired or  demolished  by  means  of  a 
scaffolding. 

1.  What  is  a  "building." 

A  platform  built  to  carry  and  support 
a  steam  train  used  in  the  erection  of  a 
permanent  structure  is  a  "building"  with- 
in the  act.16 

The  mere  fact  that  a  building  is  more 
than  30  feet  in  height  and  that  more 
than  20  persons  other  than  domestic 
servants  are  employed  therein,  does  not 
make  such  a  building  a  factory  within 
the  compensation  act.17 

2.  Height  of  building. 

In  an  arbitration  before  the  county 
court  under  this  act,  the  question  whether 
a  building  "exceeds  30  feet  in  height," 
within  the  meaning  of  this  section,  is  a 
question  of  fact  to  be  determined  by  the 
county  court  judge,  having  regard  to  the 
particular  circumstances  existing  at  the 
time  of  the  accident  to  the  workman.18 
The  conditions  indicated  by  this  phrase 


Co.   (1902)   4  Sc.  Sess.  Cas.  5th  series,  989, 
39  Scot.  L.  R.  762,  10  Scot.  L.  T.  204. 

11  It  is  a  thing  which  embraces  a  certain 
physical   area.      Atkinson   v.   Lumb    [1903] 
1  K.  B.    (Eng.)    861,  72  L.  J.  K.  B.  N.  S. 
460,  88  L.  T.  N.  S.  789,  19  Times  L.  R.  412, 

5  W.  C.  C.  108,  67  J.  P.  414,  51  Week.  Rep. 
516. 

It  has  no  structural  boundary,  but  it  has 
geographical  boundary.  Back  v.  Dick 
[1906]  A.  C.  (Eng.)  325,  75  L.  J.  K.  B.  N. 
S.  569,  94  L.  T.  N.  S.  802,  8  W.  C.  C.  40,  22 
Times  L.  R.  548. 

12  No  recovery  is  allowable  in  respect  of 
an  accident   which  occurred  to  a  workman 
while  he  was  engaged  in  unloading  from  a 
hopper,  amount  li   miles   out  at  sea,  mud 
dredged    from    a    harbor,    notwithstanding 
that    he    was    at    times    employed    on    the 
dredger.    Chambers  v.  Whitehaven  Harbour 
Comrs.  [1899]  2  Q.  B.  (Eng.)   132,  68  L.  J. 
Q.  B.  N.  S.  740,  80  L.  T.  N.  S.  586,  47  Week. 
Rep.  533,  15  Times  L.  R.  341,  1  W.  C.  C. 
47. 

A  workman  employed  by  a  subcontractor 
to  cart  sand  for  the  construction  of  a  rail- 
way, who  was  injured  at  a  point  2£  miles 
from  the  works,  is  not  injured  "on  or  in  or 
about"  engineering  work.  Pattison  v. 
White  (1904)  20  Titaes  L.  R.  (Eng.)  775, 

6  W.  C.  C.  61. 

No  compensation  can  be  recovered  for  an 
injury  received  in  unloading  and  stacking 
rails  in  a  yard  which  was  700  yards  distant 
from  the  place  where  the  old  rails  were 
being  torn  up  and  new  ones  laid.  Back 
v.  Dick  (Eng.)  supra. 

A  workman  engaged  in  the  erection  of 
gas  engines  for  generating  electricity  for, 
among  other  purposes,  a  shipbuilding  yard, 
at  a  distance  of  150  yards  from  where  docks 
were  being  constructed,  was  not  engaged  on, 
L.R.A.1916A. 


I  in,  or  about  an  engineering  work.     Rimmer 

!  v.  Premier  Gas  Engine  Co.  (1907)   97  L.  T. 

1  N.  S.  (Eng.)  226,  23  Times  L.  R.  610,  9  W. 

C.  C.  56.     Sir  Gorell  Barnes,  P.,  said:     "In 

my  opinion  it  is  impossible  to  hold  that  a 

place  which   was   used  to   supply  electrical 

energy  for  a  multitude  of  purposes  can  be 

held  to  be  part  of  a  dock  because  one  of 

those   purposes    was    the    supply    of    power 

for  the  dock." 

13  Lord  v.  Turner  (1902;  C.  C.)  114  L.  T. 
Jo.  (Eng.)  133,  5  W.  C.  C.  87. 

14  Rogers  v.  Cardiff  Corp.  [1905]   2  K.  B. 
(Eng.)   832.  75  L.  J.  K.  B.  N.  S.  22,  93  L. 
T.  N.  S.  623,  22  Times  L.  R.  9,  8  W.  C.  C. 

:  51,  54  Week.  Rep.  35,  70  J.  P.  9,  4  L.  G.  R. 

|1- 

15  Andrews   v.    Andrews    [1908]    2   K.   B. 

(Eng.)  567,  77  L.  J.  K.  B.  N.  S.  974,  99 
!  L.  T.  N.  S.  214,  24  Times  L.  R.  709.  This 
case  arose  under  §  4,  subsec.  4,  of  the  act  of 
1906. 

!6Aylward  v.  Matthews  [1905]  1  K.  B. 
(Eng.)  343,  74  L.  J.  K.  B.  N.  S.  336,  53 
Week.  Rep.  518,  88  L.  T.  N.  S.  671,  19  Times 
L.  R.  196. 

"Dyer  v.  Swift  Cycle  Co.  [1904]  2  K. 
B.  (Eng.)  36,  73  L.  J.  K.  B.  N.  S.  566.  68 
J.  P.  394,  52  Week.  Rep.  483,  90  L.  T.  N.  S. 
613,  20  Times  L.  R.  429  (building  used  for 
bicycle  salesroom;  no  mechanical  power  of 
any  kind  used). 

18  McGrath  v.  Neill  [1902]  1  K.  B.  (Eng.) 
211,  71  L.  J.  K.  B.  N.  S.  58,  66  J.  P.  180, 
50  Week.  Rep.  162,  18  Times  L.  R.  36, 
approving  a  finding  that  the  building  was 
over  30  feet  in  height,  where  the  judge  took 
the  lowest  part  of  the  footings  as  the  level 
from  which  to  estimate  the  height,  and 
there  was  no  evidence  to  show  that,  at  the 
time,  anything  more  than  the  footings  had 
been  covered  in. 


WORK  ON  BUILDINGS. 


197 


are  satisfied  where  the  height  of  the 
building,  without  including  the  founda- 
tion, is  more  than  30  feet.19  The  dis- 
tance from  the  ground  to  the  top  of  the 
roof,  and  not  the  distance  from  the 
ground  to  the  top  of  the  walls,  is  to  be 
considered  in  determining  whether  a 
building  is  more  than  30  feet  high,  with- 
in the  act.20 

Workmen  on  an  addition  to  a  build- 
ing which  is  over  30  feet  high  were  with- 
in the  protection  of  the  act,  although  the 
addition  was  not  then  of  that  height.21 
So  a  finding  that  the  employment  of  the 
workman  was  upon  a  building  exceed- 
ing 30  feet  in  height,  being  demolished, 
is  justified  where  the  evidence  shows 
that,  although  the  building  had  been  re- 
duced to  less  than  30  feet,  the  party  wall 
between  the  building  and  the  adjoining 
one  remained  intact  at  the  time  of  the 
accident,  and  was  more  than  30  feet  in 
height.22  But  a  workman  engaged  in 
demolishing  a  building  less  than  30  feet 
in  height  is  not  within  the  statute,  al- 
though it  adjoins  and  is  connected  with 


another  building  which  is  more  than  30 
feet  in  height.28 

If  a  building  in  the  process  of  erection 
has  not  reached  the  height  of  30  feet, 
it  is  not  within  the  statute,  although 
when  completed  it  will  exceed  that 
height.24 

The  height  of  the  building  is  immate- 
rial where  it  is  one  "in  which  machinery 
driven  by  steam,  water,  or  other  mechan- 
ical power  is  being  used  for  the  purpose 
of  the  construction,  repair,  or  demolition 
thereof."25 

3.  "Being  constructed  or  repaired." 

These  words  do  not  confine  the  employ- 
ment to  the  construction  or  repair  of  the 
building  as  a  whole.  "Construction" 
here  includes  a  case  where  the  building 
has  been  constructed  and  believed  to  be 
complete,  but,  having  been  afterwards 
thought  to  be  faulty  and  unstable,  is 
being  strengthened  by  the  addition  of 
stays  or  supports.26 

The  word  "repair"  includes  painting, 
whitewashing,  and  dubbing  the  ceiling 


A  depression  or  sunken  bed  6  feet  deep 
in  which  a  condenser  is  to  stand,  connected 
by  pipes  to  a  boiler  house,  the  chimney  to 
which  is  70  feet  high,  is  a  part  of  a  build- 
ing over  30  feet  in  height.  McGregor  v. 
Wright  (1901;  C.  C.)  3  W.  C.  C.  (Eng.) 
121. 

In  Silvester  v.  Cude  (1899)  15  Times  L. 
R.  (Eng.)  434,  1  W.  C.  C.  120,  the  action 
of  the  county  court  judge  in  refusing  to 
permit  the  respondent  to  offer  evidence  to 
show  that  the  building  was  not  30  feet 
in  height  was  sustained  upon  the  ground 
that  he  had  failed  to  answer. 

WHalstead  v.  Thomson  (1901)  3  Sc.  Sess. 
Gas.  5th  series,  668,  38  Scot.  L.  R.  473. 

20Hoddinott  v.  Newton  [1899]  1  Q.  B. 
(Eng.)  1018,  68  L.  J.  Q.  B.  N.  S.  495,  47 
Week.  Rep.  499,  80  L.  T.  N.  S.  558,  15  Times 
L.  R.  299,  affirmed  as  to  this  point  in  [1901] 
A.  C.  49,  70  L.  J.  Q.  B.  N.  S.  150,  49  Week. 
Rep.  380,  84  L.  T.  N.  S.  1,  17  Times  L.  R. 
134. 

21  Hartley  v.  Quick  [1905]  1  K.  B.  (Eng.) 
359,  74  L.  J.  K.  B.  N.  S.  257,  92  L.  T.  N.  S. 
191,  21  Times  L.  R.  207. 

82  Knight  v.  Cubitt  [1902]  1  K.  B.  (Eng.) 
31,  71  L.  J.  K.  B.  N.  S.  65,  50  Week.  Rep. 
113,  18  Times  L.  R.  26,  66  J.  P.  52,  85  L. 
T.  N.  S.  526. 

23  Internal  communication  between  a 
building  over  30  feet  high  and  an  adjoining 
building  less  than  that  height,  coupled  with 
the  fact  that  the  same  business  is  carried 
on  in  both  buildings,  is  not  evidence  to 
justify  a  finding  that  the  lower  building 
is  a  part  of  the  higher,  and  that  a  work- 
man injured  while  engaged  in  demolishing 
the  lower  building  is  employed  on  the 
demolition  of  a  building  exceeding  30  feet 
in  height.  Rixsom  v.  Pritchard  [1900] 
1  Q.  B.  (Eng.)  800,  82  L.  T.  N.  S.  186,  69  I 
L.R.A.1916A. 


L.  J.  Q.  B.  N.  S.  494,  16  Times  L.  R. 
250. 

24  An  accident  to  a  workman  employed 
on,  in,  or  about  a  building  in  the  course 
of  construction,  which  does  not  at  the  time 
exceed  30  feet  in  height,  although  it  is 
intended  that  when  completed  it  shall  ex- 
ceed such  height,  is  not  within  the  act. 
Billings  v.  Halloway  [1899]  1  Q.  B.  (Eng.) 
70,  68  L.  J.  Q.  B.  N.  S.  16,  79  L.  T.  N.  S. 
396,  47  Week.  Rep.  105,  15  Times  L.  R. 
53. 

25Mellor  v.  Tomkinson  [1899]  1  Q.  B. 
(Eng.)  374,  68  L.  J.  Q.  B.  N.  S.  214,  79 
L.  T.  N.  S.  715,  63  J.  P.  55,  47  Week.  Rep. 
240,  15  Times  L.  R.  142;  Murnin  v.  Calder- 
wood  (1899)  1  Sc.  Sess.  Gas.  5th  series,  862, 
36  Scot.  L.  R.  648,  7  Scot.  L.  T.  16. 

26  In  Hoddinott  v.  Newton  [1901]  A.  C. 
(Eng.)  49,  reversing  [1899]  1  Q.  B.  1018, 
68  L.  J.  Q.  B.  N.  S.  495,  47  Week.  Rep.  499, 
80  L.  T.  N.  S.  558,  15  Times  L.  R.  299, 
Lord  Macnaghten  said:  "Construction,  re- 
pair, demolition, — these  three  operations 
cover,  I  think,  every  varying  phase  in  the 
life  of  a  building,  from  its  beginning  to  its 
end."  Lord  Morris  said:  "In  my  opinion, 
when  you  realize  what  the  entity  called  the 
building  is,  all  operations  on  it  must  be  ei- 
ther constructing,  or  repairing,  or  demolish- 
ing,— alteration  in  its  construction  is,  in  my 
opinion,  constructing.  ...  In  my  opin- 
ion, whether  completed  or  not  completed, 
if  work  of  the  nature  of  construction  goes 
on,  that  is  constructing,  and  if  work  in 
the  nature  of  repair,  that  is  repairing;  and 
there  is  no  room  for  any  third  operation  of 
so-called  alteration  as  distinct  from  con- 
structing or  repairing."  Lords  Shand  and 
Lindley  dissented  from  the  judgment  of  the 
majority. 


198 


WORKMEN'S  COMPENSATION. 


and  walls  of  the  interior  of  a  building, 
where  the  painting  and  whitewashing  is 
a  portion  of  the  work  necessary  to  finish 
the  building.27 

On  the  ground  that  the  building  in 
question  came  within  the  descriptive 
words,  "being  constructed  by  a  scaffold- 
ing/' recovery  has  been  allowed  in  a 
case  where,  at  the  time  of  the  accident, 
the  component  parts  of  the  scaffolding 
were  'lying  on  the  ground  ready  for  use, 
but  the  scaffolding  itself  had  not  been 
erected,28  and  where  the  building  itself 
had  been  completed,  but  the  scaffolding 
"  was  still  standing.29  So  recovery  was  al- 
lowed where  an  employee  of  a  plumb- 
ing contractor  was  sent  to  measure  up  the 
plumbing  after  that  work  had  been  com- 


i  pleted,  although  the  building  was  still 
being  constructed  "by  means  of  a  scaf- 
fold." 30 

4.  What   is   a    "scaffolding." 

It  is  now  definitely  settled  that  the 
word  "scaffolding"  is  not  restricted  to 
those  permanent  external  structures  to 
which  the  word  is  most  commonly  ap- 
plied, but  also  embraces  an  internal  stag- 
ing, arranged  "by  means  of  planks  and 
trestles  and  without  poles.31  Whether  a 
mere  temporary  staging  of  this  kind  is  a 
scaffolding  is  a  mixed  question  of  law 
and  fact.  When  the  facts  are  ascer- 
tained it  is  a  question  of  law,  upon  which 
j  a  court  of  review  is  not  only  entitled,  but 
bound,  to  express  an  opinion.82 


27Reddy  v.  Broderick  [1901]  2  I.  R.  (Ir.) 
328. 

Whitewashing  work  being  done  upon  a 
school  building  more  than  30  feet  high,  by 
means  of  a  scaffolding,  when  a  workman 
employed  upon  the  work  was  killed  owing 
to  the  collapse  of  the  scaffolding,  is  repair 
work.  Dredge  v.  Conway  [1901]  2  K.  B. 
(Eng.)  42,  84  L.  T.  N.  S.  345,  70  L.  J.  Q. 
B.  N.  S.  494,  49  Week.  Rep.  518,  17  Times 
L.  R.  355. 

The  court  stated  that  the  effect  of  the 
decision  in  Hoddinott  v.  Newton  [1901] 

A.  C.  (Eng.)  49,  84  L.  T.  N.  S.  1,  70  L.  J.  Q. 

B.  N.  S.  150,  49  Week.  Rep.  380,  17  Times 
L.  R.  134,  supra,  was  to  overrule  the  earlier 
ruling    (Wood    v.    Walsh    [1899]     1    Q.    B. 
(Eng.)    1009,  80  L.  T.  N.  S.  345,  68  L.  J. 
Q.  B.  N.  S.  492,  63  J.  P.  212,  47  Week.  Rep. 
504,  15  Times  L.  R.  279)  that  the  ordinary 
outside  painting  of  a  building  is  not  "re- 
pair" within  the  meaning  of  the  act. 

Decorating  a  church  by  means  of  stencils 
is  "repairing,"  where  the  stenciling  was  a 
part  of  the  general  scheme  for  restoring 
the  church.  Hardy  v.  Moss  (1904;  C.  C.) 
116  L.  T.  Jo.  (Eng.)  201,  6  W.  C.  C.  68. 

28  Halstead  v.  Thomson  (1901)  3  Sc.  Sess. 
Cas.   5th   series    (Scot.)    668.      The   special 
consideration  on  which  the  court  relied  was 
that    "the    scaffolding   was    regularly   used 
from   time   to   time   by   all   the   tradesmen 
3ngaged  in  the  work  during  the  construc- 
tion of  the  building,  both  prior  and  subse- 
quently to  the  accident." 

29  A  builder  erected  a  scaffolding  for  the 
purpose  of  raising  building  materials  from 
a  lower  level  to  the  higher  level  on  which 
the    building    which    he    was    constructing 
stood.      After   the   building   was    complete, 
and  while  it  was  in  actual  use,  a  workman 
was  injured  as  he  was  removing  gear  from 
his  scaffolding.  Held,  that  the  workman  was 
employed  on  a  building  which  was  "being 
constructed"    by    means    of    a    scaffolding. 
Frid  v.  Fenton  (1900)  82  L.  T.  N.  S.  (Eng.) 
193,  69  L.  J.  Q.  B.  N.  S.  437,  16  Times  L.  R. 
267. 

So,  in  McCabe  v.  Jopling  [1904]  1  K.  B. 
(Eng.)  222,  73  L.  J.  K.  B.  N.  S.  129,  89 
L.  T.  N.  S.  624,  20  Times  L.  R.  119,  52 
L.R.A.1916A. 


Week.  Rep.  358,  68  J.  P.  121,  it  was  held 
that  a  work  of  repair  was  not  completed 
until  the  scaffolding  was  removed,  and  that 
an  employee  engaged  in  the  work  of  remov- 
ing the  scaffold  was  within  the  purview  of 
the  statute. 

30  Plant  v.  Wright  [1905]  1  K.  B.  (Eng.) 
353,  74  L.  J.  K.  B.  N.  S.  331,  53  Week.  Rep. 
358,  92   L.   T.   N.   S.   720,   21   Times  L.   R. 
217. 

31  Hoddinott    v.    Newton    [1901]    A.    C. 
(Eng.)   49,  84  L.  T.  N.  S.  1,  70  L.  J.  Q.  B. 
N.  S.  150,  49  Week.  Rep.  380,  17  Times  L.  R. 
134,  reversing   [1899]    1   Q.  B.   1018,  68  L. 
J.  Q.  B.  N.  S.  495,  47  Week.  Rep.  499,  80 
L.  T.  N.  S.  558,  15  Times  L.  R.  299. 

32  Hoddinott    v.    Newton     [1901]    A.    C. 
(Eng.)  49,  84  L.  T.  N.  S.  1,  70  L.  J.  Q.  B. 
N.  S.  150,  49  Week.  Rep.  380,  17  Times  L.  R. 
134,  per  Lord  Macnaghten. 

A  new  house  more  than  30  feet  high 
had  been  roofed  in,  and  workmen  employed 
by  the  builder  were  plastering  the  walls 
and  ceilings  inside  the  house,  for  which  pur- 
pose trestles  and  boards  were  being  used. 
One  of  the  men,  while  standing  on  the  floor 
of  the  top  landing  plastering  the  wall,  fell 
down  the  well  of  the  staircase,  there  being 
no  railing,  and  was  killed.  At  that  time 
other  workmen  were  at  work  plastering 
some  of  the  rooms,  and  were  standing  on 
boards  placed  across  trestles  4  feet  high, 
in  order  to  enable  them  to  reach  the  ceil- 
ings and  upper  part  of  the  walls.  It  was 
held  that  there  was  evidence  to  justify  a 
finding  of  the  county  judge  that  such  ar- 
rangement of  trestles  and  boards  was  a 
"scaffolding."  Maude  v.  Brook  [1900]  1 
Q.  B.  (Eng.)  575,  69  L.  J.  Q.  B.  N.  S.  322, 
64  J.  P.  181,  48  Week.  Rep.  290,  82  L.  T. 
N.  S.  39,  16  Times  L.  R.  164.  Collins,  L.  J., 
dissented,  being  of  opinion  that  the  word 
"scaffolding"  ought  to  be  construed  in  its 
ordinary  popular  meaning,  taken  in  connec- 
tion with  its  context,  and  that  it  meant 
some  structure  of  planks  and  supports  capa- 
ble of  being  used  for  the  construction  or 
repair  of  a  building  over  30  feet  in  height. 

A  new  house  more  than  30  feet  high  had 
been  roofed  in  and  the  external  scaffolding 
removed.  The  applicant  was  engaged  in 


WHAT  IS  A  SCAFFOLDING. 


199 


The  cases  dealing  with  the  question 
whether  a  ladder  is  a  "scaffolding"  with- 
in the  meaning  of  the  act  are  conflict- 
ing. In  some  cases  it  has  been  held  to 
be  a  conclusion  of  law  that  a  ladder  used 
in  the  ordinary  way  is  not  embraced  in 
the  word  "scaffolding."  33  But  what  ap- 
pears to  have  become  the  settled  rule  is 
that  whether  a  ladder  is  a  scaffolding 
within  the  meaning  of  the  act  is  a  ques- 


tion of  fact,  and  ordinarily  the  finding 
of  the  arbitrator  will  not  be  disturbed.34 
So  the  court  of  appeal  refused  to  dis- 
turb a  finding  that  painters'  steps  came 
within  the  terms  of  the  act.35 

A  finding  that  a  "crawling  board"  used 
in  the  repair  of  a  roof  was  scaffolding 
was  held  not  to  be  improper.36 

It  is  not  necessary  that  the  scaffold 
shall  be  put  up  by  the  undertaker;  it  is 


plastering  the  wallg  and  ceiling  in  one  of 
the  rooms,  and  in  order  to  reach  his  work 
was  standing  on  a  structure  of  trestles, 
with  boards  on  them.  While  at  work  in 
this  manner  he  met  with  an  accident,  for 
which  he  claimed  compensation.  An  arbi- 
trator appointed  by  a  county  court  judge 
decided  that  the  structure  was  not  a  scaf- 
folding, and  refused  to  make  an  award  of 
compensation,  but  referred  the  matter  to 
the  court  judge,  who  reversed  the  decision  j 
of  the  arbitrator  and  awarded  the  com- 
pensation provisionally  settled  by  the  arbi- 
trator. On  appeal  it  was  held  that  the 
question  whether  the  structure  was  a  scaf- 
folding or  not  was  a  question  for  the  arbi- 
trator, and  that  his  finding  was  not  open 
to  review.  Ferguson  v.  Green  [1901]  1  K. 

B.  (Eng.)   25,  70  L.  J.  K.  B.  N.  S.  21,  64 
J.  P.  819,  49  Week.  Rep.  105,  83  L.  T.  N.  S. 
461,  17  Times  L.  R.  41. 

The  word  "scaffolding"  includes  an  in- 
ternal staging  formed  by  planks  resting  on 
the  step  of  a  ladder  and  upon  one  of  the 
roof  principals  in  the  center  of  a  room. 
Reddy  v.  Broderick  [1901]  2  I.  R.  (Ir.) 
328. 

Planks  over  a  sunken  bed  6  feet  deep  and 
used  to  wheel  barrows  upon  is  a  scaffolding. 
McGregor  v.  Wright  (1901;  C.  C.)  3  W.  C. 

C.  (Eng.)  121. 

Two  pairs  of  trestles  with  planks  resting 
on  them  do  not  constitute  a  scaffolding. 
Stack  v.  Counsell  Bros.  (1899;  C.  C.)  106 
L.  T.  Jo.  (Eng.)  342,  1  W.  C.  C.  133. 

33  Wood  v.  Walsh  [1899]  1  Q.  B.   (Eng.) 
1009,  68  L.  J.  Q.  B.  N.  S.  492,  63  J.  P.  212, 
47  Week.  Rep.  504,  80  L.  T.  N.  S.  345,  15 
Times  L.  R.  279;  M'Donald  v.  Hobbs  (1899)  j 
2  Sc.   Sess.  Cas.  5th  series,  3,  37   Scot.  L. 
R.  4,  7  Scot.  L.  T.  157,  36  Scot.  L.  R.  393;  | 
Campbell  v.  Sellars   (1903)   5  Sc.  Sess.  Cas. 
5th  series,  900,  40  Scot.  L.  R.  643,  11  Scot,  j 
L.  T.  89  (no  evidence  that  ladder  was  used  j 
other  than  in  the  ordinary  way). 

34  Veazey  v.  Chattle  [1902]  1  K.  B.  (Eng.) 
494,  Collins.  M.  R.,  remarked:      "A  ladder 
might  be — at  any  rate  I  cannot  say  that  it 
could  not  be — a  scaffolding;   and  it  would 
make   no   difference   whether   it   were   high 
above   ground   on   the   roof   of   a   house,   or 
whether  it  were  resting  on  the  ground." 

In  one  case  the  finding  of  the  county 
court  judge  that  a  ladder  used  in  white-  . 
washing  by  placing  it  against  the  building, 
and  the  workmen  sitting  or  standing  on 
the  rungs,  was  not  a  scaffolding,  was  held 
binding  on  the  court  of  appeal.  Crowther 
v.  West  Riding  Window  Cleaning  Co.  [1904] 
L.R.A.1916A. 


1  K.  B.  (Eng.)  232,  73  L.  J.  K.  B.  N.  S.  71, 
68  J.  P.  122,  52  Week.  Rep.  374. 

In  another  the  court  of  appeal  refused 
to  disturb  a  finding  to  the  effect  that  a 
ladder  placed  so  that  one  end  rested  on 
the  ground  and  the  other  against  the  para- 
pet of  a  house  was  not  a  "scaffolding." 
Marshall  v.  Rudeforth  [1902]  2  K.  B. 
(Eng.)  175,  71  L.  J.  K.  B.  N.  S.  781,  66 
J.  P.  627,  50  Week.  Rep.  596,  86  L.  T.  N.  S. 
752,  18  Times  L.  R.  649. 

On  the  other  hand,  in  O'Brien  v.  Dob- 
bie  [1905]  1  K.  B.  (Eng.)  346,  the  finding 
that  a  ladder  upon  which  a  workman  was 
standing  to  do  some  work  was  a  scaffolding 
was  upheld.  Mathew,  L.  J.,  said:  "It  [the 
ladder]  was  put  to  answer  the  purposes 
that  might  be  secured  by  a  scaffolding,  be- 
cause the  workmen  did  not  have  recourse 
to  it  merely  to  pass  up  and  down;  but  it 
was  put  there,  and  intended  to  be  used 
there,  and  was  used  there,  as  a  support  for 
the  workman  at  a  certain  height  from  the 
ground  to  enable  him  to  do  part  of  the 
work  that  he  had  to  do.  Under  those  cir- 
cumstances it  seems  to  me  that  there  is 
nothing  in  the  cases  that  have  been  decided 
which  precludes  us  from  taking  the  view 
that  there  was  evidence  before  the  learned 
arbitrator  that  this  structure  was  not 
being  used  merely  as  a  ladder,  but  was  be- 
ing used  for  the  additional  purpose  of  af- 
fording support  to  the  workman.  I  consider 
the  question  was  one  for  him.  It  was  first 
a  question  of  fact,  and,  when  the  facts  had 
been  ascertained,  there  is  no  rule  of  law 
which  precluded  him  from  coming  to  the 
conclusion  at  which  he  arrived." 

35Elvin  v.  Woodward  [1903]  1  K.  B. 
(Eng.)  838,  72  L.  J.  K.  B.  N.  S.  468,  67  J.  P. 
413,  51  Week.  Rep.  518,  88  L.  T.  N.  S.  671, 

19  Times  L.  R.  410. 

36  Veazey  v.  Chattle  [1902]  1  K.  B. 
(Eng.)  494,  71  L.  J.  K.  B.  N.  S.  252,  66  J. 
P.  389,  50  Week.  Rep.  263,  85  L.  T.  N.  S. 
574,  18  Times  L.  R.  99  (Stirling,  L.  J., 
dissenting).  The  crawling  board,  a  contriv- 
ance ordinarily  used  in  the  repair  of  roofs, 
consisting  of  a  wooden  plank  about  18  to 

20  feet    long   and    10    inches    wide,   across 
which  were  nailed  transverse  pieces  of  wood 
to  give  support  to  the  man  while  working 
upon  it;  on  the  under  side  at  one  end  was 
fastened  a  cross  piece  of  wood,  which  fitted 
over   the   ridge   of   the   roof   and    kept   the 
board  in  position.     At  the  time  of  the  acci- 
dent the  workman  was  on  the  roof  fixing 
the   crawling   board,    while   the   lower   end 
of  the  board  was  being  steadied  by  an  as- 
sistant standing  on  the  ladder. 


200 


WORKMEN'S  COMPENSATION. 


sufficient  that  the  building  is  being  con- 
structed by  means  of  a  scaffold.37 

The  result  of  the  decisions  as  a  whole 
is  manifestly  to  bring  within  the  pur- 
view of  the  act  some  classes  of  structures 
which  are  assuredly  not  scaffolds  in  the  j 
sense  in  which  that  term  is  ordinarily 
employed  when  it  is  applied  to  a  contriv- 
ance for  facilitating  the  erection  of  a 
building.  The  result  of  the  decisions  in- 
volves the  curious  result  that  a  workman 
who,  when  working  in  a  house  exceed- 
ing 30  feet  in  height,  falls  from  a  low 
temporary  platform  erected  in  a  room 
where  the  floor  is  completely  finished, 
where  he  is  in  no  greater  danger  than  if 
he  were  on  a  similar  platform  in  a  com- 
pleted house,  may  recover  compensation, 
while,  on  the  other  hand,  no  compensa- 
tion is  recoverable  by  a  servant  who, 
while  working  on  a  house  less  than  30 
feet  in  height,  falls  from  a  platform  rest- 
ing on  the  ground,  which  subjects  him 
to  a  much  greater  danger. 

It  would  not  seem  to  be  improbable,  to 
say  the  least,  that  the  legislature  really 
intended  to  confine  the  statutory  right  of 
compensation  to  cases  in  which  the  cause 
of  the  accident  is  the  scaffolding,  which 
is  of  such  a  height  and  such  a  construc- 
tion that  the  workmen  on  it  are  exposed 
to  the  danger  of  falling  30  feet  or  more. 

e.  Meaning  of  "railroad." 

Private  railways,  not  being  "used  for 
purposes  of  public  traffic,"  are  not  cov- 
ered by  the  compensation  act,  although 
they  may  be  connected  with  a  public  rail- 
way.38 

A  tramway  laid  along  a  public  road  is 
a  "railroad."  39 

The   word   "railroad"   is   used   in   the 


same  comprehensive  sense  as  the  word 
"railway,"  and  is  not  restricted  to  the 
permanent  way  merely.40 

/.  —  of  "factory." 
1.  In  general. 

As  appears  from  the  text  of  the  com- 
pensation act  of  1897,  set  out  above,  the 
provisions  of  the  factory  act  from  1878 
-1891  were  practically  incorporated  in 
the  former  act;  but  as  these  acts  are  of 
considerable  length  and  include  many 
provisions  not  relevant  to  the  act  under 
discussion,  it  has  been  deemed  wise  not  to 
include  the  text  of  these  acts.  The  de- 
scriptive terms  used  therein  to  define  a 
factory,  which  have  been  construed  in 
connection  with  the  awarding  of  com- 
pensation, are  sufficiently  set  out  in  the 
titles  to  the  following  subdivision. 

The  factory  in  question  is  the  factory 
of  the  employer,  and  not  one  belonging 
to  a  third  person  to  which  the  workman 
has  been  sent  to  do  some  work  for  his 
employer.41 

2.  "Premises  wherein  steam,  water,  or 
other  mechanical  power  is  used  in 
aid  of  the  manufacturing  process." 

With  reference  to  these  descriptive 
words  it  has  been  held  that  a  yard  in 
which  stones  are  dressed  by  manual  labor, 
and  in  which  there  is  an  engine  house 
in  which  the  workmen's  tools  are  sharp- 
ened, is  a  "nontextile  factory ;  "  42  an  em- 
ployee engaged  in  repairing  a  hydraulic 
lift  is  within  the  act,  although  the 
"machinery  driven  by  steam,  water,  or 
other  mechanical  power"  is  the  lift  it- 
self.43 But  a  gas  main  used  to  supply 
gas  to  the  consumers  is  not  a  part  of  a 
factory.44  And  the  preliminary  washing 


37  Fletcher   v.   Hawley    (1905)    21    Times 
L.  R.   (Eng.)   191. 

38  The   word  "railway"   is  not  applicable 
to  a  siding  in  a  dockyard,  constructed  mere- 
ly as  an  adjunct  to  the  ordinary  business 
of  the  proprietors  of  the  dockyard.     Lon- 
don &  I.  Docks  Co.  v.  Midland  R.   Co.   18 
Times  L.  R.  (Eng.)  171,  71  L.  J.  K.  B.  N.  S. 
153,  86  L.  T.  N.  S.  29,  reversed  in   [1902] 
1  K.  B.  568,  18  Times  L.  R.  325,  71  L.  J. 
K.  B.  N.  S.  369,  50  Week.  Rep.  461,  86  L.  T. 
N.  S.  339.     Nor  to  a  private  siding  belong- 
ing to  a  trading  company  which  does  busi- 
ness with  the  railway  company.     Brodie  v. 
North  British  R.  Co.  (1900)  3  Sc.  Sess.  Cas. 
5th  series,  75,  38  Scot.  L.  R.  38,  8  Scot.  L. 
T.  248. 

39  Fletcher  v.  London   United   Tramways 
[1902]   2  K.  B.   (Eng.)   269,  71  L.  J.  K.  B. 
N.  S.  653,  66  J.  P.  596,  50  Week.  Rep.  597, 
86  L.  T.  N.  S.  700,  18  Times  L.  R.  639. 

40Fullick  v.  Evans  (1901)  84  L.  T.  N.  S. 
(Eng.)  413,  17  Times  L.  R.  346,  holding 
L.R.A.1916A. 


that,  where  a  workman  was  accidentally 
injured  in  the  course  of  his  employment  on 
the  construction  of  a  signal  box  on  a  new 
line  of  railway,  his  employment  was  on,  in, 
or  about  a  work  of  construction  of  a  "rail- 
road." 

41  Francis  v.  Turner  Bros.  [1900]   1  Q.  B. 
(Eng.)  478,  69  L.  J.  Q.  B.  N.  S.  182,  81  L.  T. 
N.  S.  770,  48  Week.  Rep.  228,  64  J.  P.  53, 
16  Times  L.  R.  105,  2  W.  C.  C.  61;  Wrigley 
v.  Whittaker    [1902]   A.  C.    (Eng.)    299,  71 

j  L.  J.  K.  B.  N.  S.  600,  86  L.  T.  N.  S.  775, 
18  Times  L.  R.  559,  50  Week.  Rep.  656,  66 
J.  P.  420,  4  W.  C.  C.  93. 

See  also  the  cases  cited  post,  209. 

42  Weir  v.  Petrie   (1900)   2  Sc.  Sess.  Cas. 
5th  series,  1041,  37  Scot.  L.  R.  795,  8  Scot. 
L    T    75 

43Tuliock  v.  Waygood  [1906]  2  K.  B. 
(Eng.)  261,  75  L.  J.  K.  B.  N.  S.  557,  95  L. 
T.  N.  S.  223. 

44  Spacey  v.  Dowlais  Gas  &  Coke  Co. 
[1905]  2  K.  B.  (Eng.)  879,  22  Times  L.  R. 


PREMISES  USED  IN  MANUFACTURING. 


201 


of  bottles  by  a  rotary  brush  driven  by  a 
small  gas  engine  is  not  a  process  used 
"in  aid  of"  the  bottling,  and  consequently 
that  a  place  where  such  work  is  carried 
on  is  not  within  the  purview  of  the  act.45 
Nor  can  the  expressions  in  question  be  so 
construed  as  to  bring  within  the  category 
of  "factories"  a  threshing  machine  and 
traction  engine,  which,  at  the  time  of 
the  accident,  were  in  transit  to  a  place 
where  they  were  to  be  used  for  thresh- 
ing, the  engine  being  connected  with  the 
machine  for  no  purpose  but  that  of  haul- 
age.46 

A  theater  in  which  hydraulic  machin- 
ery is  used  to  raise  and  lower  a  portion  of 
the  stage  is  not  a  factory,  since  the  me- 
chanical power  is  not  used  in  the  aid 
of  a  manufacturing  process.47  Steam 
power  being  used  to  cut  hay  and  straw 
is  not  used  in  the  aid  of  any  manufac- 
turing process.48 

Horse  power  is  not  a  mechanical  power 
within  the  meaning  of  the  statute ; 49 
nor  is  hand  power,  so  that  premises  in 
which  such  power  is  used  are  not  for  that 
reason  alone  a  factory.50  Blocks  and  a 


winch  operated  by  hand  power  are  not 
within  the  statute ;  61  nor  is  a  pulley  op- 
erated by  hand  power.52 

The  plaintiff  was  not  engaged  "in  .or 
about"  a  factory,  where  he  was  injured 
in  a  shed  which  was  about  a  half  a  mile 
away  from  his  employer's  factory,  and  in 
which  no  mechanical  power  was  used.58 

3.  Iron  mills. 

A  farrier's  forge  and  shop,  at  which  a 
large  number  of  horseshoes  are  kept  for 
use  in  shoeing  horses,  is  not  an  "iron 
mill"  merely  because  the  shoes  have  to  be 
hardened  before  being  used.54 

4.  "Premises  wherein  .  .  .  any 
manual  labor  is  exercised  Z>y  way  of 
trade  or  for  purposes  of  gain." 

With  reference  to  these  words  as  used 
in  the  clause  in  which  a  "nontextile  fac- 
tory" is  defined,  it  has  been  held  that 
this  term  is  applicable  to  the  refuse  de- 
spatch works  of  a  city,  where  the  salable 
parts  of  the  city  refuse  are  separated 
from  the  unsalable  part  by  processes  in 
which  steam  power  is  used,55  and  to  a 


29,  75  L.  J.  K.  B.  N.  S.  5,  54  Week.  Rep. 
138,  93  L.  T.  N.  S.  685,  8  W.  C.  C.  29. 
Romer,  M.  Rv  said:  "The  business  of  the 
gas  company  included  both  the  manu- 
facture and  the  supply  of  gas,  and  no  doubt 
gas  mains  are  practically  a  necessity  for  the 
business  of  supplying  gas  to  consumers; 
but  the  use  of  mains  for  delivering  the  gas 
does  not  make  them  part  of  the  place  where 
the  gas  is  manufactured." 

45  Law  v.  Graham  [1901]  2  K.  B.  (Eng.) 
327  (decided  with  reference  to  the  defi- 
nition in  §  93  of  the  repealed  factory  and 
workshop  act  1878).  In  the  course  of  the 
opinion  it  was  said:  "I  am  of  opinion 
that,  having  regard  to  the  earlier  part  of 
§  93,  and  to  the  provisions  with  respect 
to  manufacturing  processes,  and  to  the  4th 
schedule,  the  washing  of  the  bottles  by 
mechanical  means  cannot  be  fairly  called 
a  process  which  is  used  'in  aid  of  the 
bottling  of  the  beer.  It  is  true  that  the 
bottles  must  be  clean,  and  the  respond- 
ents wash  them  because  they  are  going 
to  put  beer  into  them;  but,  in  my  opinion, 
that  operation  is  not  'in  aid  of  in  the  sense 
in  which  those  words  are  used  in  the  sec- 
tion. Therefore,  though  the  case  is  near 
the  line,  I  think  the  justices  were  right. 
With  regard  to  Weir  v.  Petrie  (Scot.)  supra, 
I  do  not  wish  to  be  thought  to  dissent 
from  that  decision,  because  there,  in  a 
sense,  the  actual  condition  of  the  tools 
might  have  a  great  deal  to  do  with  the 
dressing  of  the  stone  for  sale.  Whether 
or  not  I  should  have  decided  the  case  the 
same  way  I  need  not  now  consider;  but  I 
do  not,  in  what  I  have  said,  intend  to  dis- 
sent from  the  decision,  because  I  think  i 
L.R.A.1916A 


a  distinction  may  be  drawn  between  it  and 
the  case  now  before  us." 

46  George  v.  Macdonald  (1901)  4  Sc.  Sess. 
Cas.  5th  series,  190,  39  Scot.  L.  R.  136,  9 
Scot.  L.  T.  267. 

47  Burnett  v.  Drury  Lane  Theatre  (1902) 
4  W.  C.  C.  (Eng.)  56. 

48  Employment   on    a    chaff   cutting    ma- 
chine  which   was   run    by    a    steam   engine 
and   let  out  to   farmers   is   not  within   the 
act,  since  such  a  machine  is  not  a  factory, 
nor  is   the  operation   of   it   an   engineering 
work.     Watkinson  v.  Crouch   (1899;  C.  C.) 
107  L.  T-  Jo.  (Eng.)  328,  1  W.  C.  C.  137. 

49  Bolt  v.  Heywood   (1903;  C.  C.)   114  L. 
T.  Jo.  (Eng.)  294,  5  W.  C.  C.  151. 

SOWillmott  v.  Paton  [1902]  1  K.  B. 
(Eng.)  237,  71  L.  J.  K.  B.  N.  S.  1,  66  J.  P. 
197.  50  Week.  Rep.  148,  85  L.  T.  N.  S.  569, 
18  Times  L.  R.  48,  4  W.  C.  C.  65. 

51  Putting  a  fly  wheel  onto  an  engine  by 
means  of  blocks  and  a  winch  operated  by 
hand  power  does  not  fall  within  the  stat- 
ute. Wrigley  v.  Bagley  [1901]  1  Q.  B. 
(Eng.)  780,  70  L.  J.  K.  B.  N.  S.  538,  84 
L.  T.  N.  S.  415,  3  W.  C.  C.  61,  49  Week. 
Rep.  472,  65  J.  P.  372. 

53  The  lowering  of  pipes  into  a  trench  by 
means  of  a  pulley  is  not  work  in  which 
"mechanical  power  is  used."  Bennett  v. 
Aird  (1899;  C.  C.)  107  L.  T.  Jo.  (Eng.)  550, 
1  W.  C.  C.  138. 

53  Ferguson  v.  Barclay  (1902)  5  Sc.  Sess. 
Cas.  5th  series,  105,  40  Scot.  L.  R.  58,  10 
Scot.  L.   T.  350. 

54  Johnson  v.  London  General  Omnibus  Co. 
(1905;  C.  C.)  7  W.  C.  C.  (Eng.)  83. 

55  Henderson    v.    Glasgow     (1900)     2    Sc. 
Sess.  Cas.  5th  series,  127,  37  Scot.  L.  R.  857, 
8  Scot.  L.  T.  118. 


202 


WORKMEN'S  COMPENSATION. 


tripe  manufactory  where  steam  is  used 
to  force  water  into  a  boiler,  and  then  to 
heat  the  water.66 

The  term  "gain"  means  direct  gain,  so 
that  a  workman  who  was  employed  by 
a  farmer  on  his  farm  to  drive  a  movable 
steam  engine,  for  the  purpose  of  working 
a  mill  for  grinding  meal  intended  to  be 
used  for  food  for  stock  on  the  farm,  and 
not  for  sale,  is  riot  employed  on,  in,  or 
about  a  "factory."  57  It  was  also  said  in 
the  same  case  that  farming  was  not  a 
trade. 

A  laundry  which  is  part  of  the  equip- 
ment of  a  hotel,  in  which  is  laundered 
the  hotel  linen,  the  clothing  of  the  em- 
ployees, as  a  part  of  their  compensation, 
and  also  such  clothing  as  the  guests 
might  desire,  which  was  paid  for  by  the 
guests,  has  been  held  not  to  be  operated 
for  "purposes  of  gain."  58 

A  shed  attached  to  hotel  stables  in 
which  a  chaff  cutter  was  located  for  cut- 
ting feed  for  the  owner's  and  travelers' 
horses  is  not  a  factory  as  the  work  was 
not  carried  on  for  direct  gain.59 

5.  Premises  in  ivhich  "manual  labor  is 
exercised  in  adapting  an  article  for 
sale." 

These  descriptive  words  were  in  one 
•case  held  to  be  applicable  to  premises 
where  beer  was  charged  by  mechanical 
power  with  gas,  and  then  allowed  to  flow 
into  bottles  under  the  pressure  of  the 
gas  through  a  tap,  the  nozzle  of  which 


was  pulled  down  into  the  necks  of  the 
bottles.60 

6.  "Shipbuilding    yards." 

The  fact  that  repairs  are  being  done 
in  a  ship  in  a  dock  does  not  make  the 
dock  for  that  reason  a  "shipbuilding 
yard;"  therefore  the  dock  was  deemed 
not  to  be  a  factory  for  the  purposes  of 
the  compensation.61 

7.  "Bottle  washing  works," 

These  descriptive  words  do  not  apply 
where  the  bottle  washing  is  merely  an- 
cillary to  the  main  business  that  is  car- 
ried on,61a  nor  where  mechanical  power 
of  some  kind  is  not  used.62 

S.  Electrical   stations   for   lighting   any 
"street,  public  place,"  etc. 

A  workhouse  which  has  an  engine 
house  and  machinery  used  for  the  pur- 
pose of  generating  electricity  for  light- 
ing purposes  is  a  public  place  within 
schedule  6,  part  1,  clause  20,  and  is  there- 
fore a  nontextile  factory  within  the 
meaning  of  §  149,  subsec.  1,  of  the  fac- 
tory and  workshop  act  1901.63 

A  stoker  and  assistant  engineer  in 
the  electrical  station  of  a  training  ves- 
sel moored  in  the  river  Thames,  and 
used  for  training  for  sea  service  pauper 
boys  under  the  charge  of  the  metropoli- 
tan parishes  and  unions,  is  within  the 
act,  since  the  vessel  is  a  "factory"  and 
the  employers  were  undertakers.64 


56Doswell  v.  Cowell  (1906)  95  L.  T.  N. 
S.  (Eng.)  38,  22  Times  L.  R.  628,  8  W.  C. 
C  33 

57  Nash   v.    Hollinshead    [1901]    1    K.    B. 
(Eng.)   700,  70  L.  ,T.  K.  B.  N.  S.  571,  75  J. 
P.  357,  49  Week.  Rep.  424,  84  L.  T.  N.  S. 
483,  17  Times  L.  R.  352. 

58  Caledonian   R.   Co.  v.   Paterson    (1898) 
1  Sc.  Sess.  Cas.  5th  series,  26,  36  Scot.  L. 
R.  60,  6  Scot  L.  T.  194,  2  Adam,  620. 

59  Bolt  v.  Hey  wood   (1909)   114  L.  T.  Jo. 
(Eng.)   294,  5  W.  C.  C.  151. 

eOHoare  v.  Truman  (1902)  71  L.  J.  K. 
B.  N.  S.  (Eng.)  380,  86  L.  T.  N.  S.  417,  50 
Week.  Rep.  396,  66  J.  P.  342,  4  W.  C.  C. 
58  (factory  act  1878). 

61  Spencer  v.  Livett  [1900]  1  Q.  B.  (Eng.) 
498,  69  L.  J.  Q.  B.  N.  S.  338,  64  J.  P.  196, 
48  Week.  Rep.  323,  82  L.  T.  N.  S.  75,  16 
Times  L.  R.  179,  2  W.  C.  C.  112. 

61a  The  wine  cellars  of  a  hotel,  in  which 
there  are  two  small  revolving  brushes, 
worked,  when  desired,  by  water  power  from 
a  tap,  for  washing  the  interior  of  the  bot- 
tles, the  cellars  being  primarily  used  for 
storage,  and  the  processes  of  corking  and 
bottle  washing  being  merely  ancillary  to 
that  object,  are  not  a  "bottle-washing 
work,"  and  therefore  not  a  factory. 
Kavanagh  v.  Caledonian  R.  Co.  (1903)  5 
L.R.A.1936A. 


Sc.  Sess.  Cas.  5th  series,  1128,  40  Scot.  L. 
R.  812,  11  Scot.  L.  T.  281.  The  court  said: 
"The  legislature  did  not  include  every  place 
in  which  bottles  are  washed,  but  only  places 
where  either  the  sole  or  principal  business 
carried  on  is  bottle  washing." 

62  A    claim   for   compensation   under    the 
workmen's    compensation    act    1897,    by    a 
spirit  salesman   against  a  spirit  merchant, 
which  set  forth  that  the  claimant  received 
the  injuries  on  account  of  which  he  claimed 
while   engaged   in  the  respondent's  service, 
washing  bottles  in  a  store  which  "is  used 
for  the  purpose  of  bottling  beer  and  wash- 
ing beer   bottles,   and   is   a   factory  within 
the   meaning   of   the   workmen'^   compensa- 
tion act  1897,"  is  irrelevant,  in  respect  that 
it  did  not  set  forth  that  steam,  water,  or 
other    mechanical    power   was   used    in    the 
respondent's     store.       Campbell    v.     M'Nee 
(1903)   5  Sc.  Sess.  Cas.  5th  series,  1151,  11 
Scot.  L.  T.  277,  40  Scot.  L.  R.  824. 

63  Mile  End  Guardians  v.  Hoare  [1903]  2 
K.  B.   (Eng.)  483,  72  L.  J.  K.  B.  N.  Si  651, 
67  J.  P.  395,  89  L.  T.  N.  S.  276,  19  Times 
L.  R.  606,  20  Cox,  C.  C.  536,  5  W.  C.  C. 
100. 

64  Benson  v.  Metropolitan  Asylums  Board 
(1908)  124  L.  T.  Jo.  403. 


DOCK,  WHARF,  QUAY. 


203 


9,   "Dock,  ivharf,   quay." 

The  combined  effect  of  the  workmen's 
compensation  act  1897  and  the  factory 
acts  was  that  every  dock,  wharf,  or  quay 
was  deemed  to  be  a  "factory,"  within 
the  meaning  of  the  former  act,  whether 
steam  power  was  or  was  not  being  used 
in  the  work  on  which  the  servant  claim- 
ing compensation  was  engaged.65  So 
every  dock  or  wharf  is  a  factory,  al- 
though none  of  the  provisions  of  the 
factory  act  have  in  fact  been  applied  to 
the  dock  or  wharf.66  While  this  con- 
struction of  the  act  is  not  apparently 
questioned  in  any  subsequent  decision,  it 
is  to  be  noted  that  it  does  not  imply  that 
every  workman  injured  on  a  dock,  wharf, 
or  quay  is  entitled  to  compensation. 

A  floating  structure  carrying  cranes 
for  loading  and  unloading  ships,  which 
is  moored  in  a  river  500  feet  from  the 
shore  by  chains  fastened  to  piles  driven 

65Raine  v.  Jobson  [1901]  A.  C.  (Eng.) 
404,  70  L.  J.  K.  B.  N.  S.  771,  49  Week. 
Rep.  705,  85  L.  T.  N.  S.  141,  17  Times  L. 
R.  627,  3  W.  C.  C.  135.  In  that  case  the 
respondents  admitted  that  the  construction 
of  the  act  specified  in  the  text  was  the  cor- 
rect one,  and  the  admission  was  referred  to 
by  the  lord  chancellor  as  being  "very  frank 
and  proper." 

The  doctrine  of  the  House  of  Lords  has 
been  also  applied  in  Scotland.  Strain  v. 
Sloan  (1901)  38  Scot.  L.  R.  475,  3  Sc.  Sess. 
Cas.  5th  series,  663,  8  Scot.  L.  T.  498. 

«6  Barrett  v.  Kemp  Bros.  [1904]  1  K.  B. 
(Eng.)  517,  73  L.  J.  K.  B.  N.  S.  138,  68  J. 
P.  196,  52  Week.  Rep.  257,  90  L.  T.  N.  S.  305, 
20  Times  L.  R.  162,  7  W.  C.  C.  78  (applicant 
was  in  employ  of  firm  of  contractors,  and 
was  at  work  on  a  private  road  leading  to  the 
wharf),  disapproving  Hall  v.  Snowden 
[1899]  2  Q.  B.  (Eng.)  136,  1  W.  C.  C.  73, 
where  a  carter  who  was  engaged  in  remov- 
ing soil  from  a  wharf  was  injured  while  he 
was  leading  his  horse  at  a  point  in  the 
street  immediately  adjoining  the  wharf,  and 
it  was  held  that  the  wharf  was  not  a  fac- 
tory within  the  meaning  of  the  statute, 
since  no  provisions  of  the  factory  acts 
were  applicable  to  the  wharf.  Collins,  L. 
J.,  said:  "We  must,  I  think,  place  a  limited 
construction  on  §  18  of  the  act  of  1895;  the 
provisions  of  that  section  can  only  apply 
to  a  wharf  when  an  accident  has  occurred 
on  the  wharf,  which  may  then  become  a 
factory  for  the  purposes  of  that  section ; 
but  that  was  not  the  case  here,  and  that 
section  is  inapplicable." 

67  Ellis  v.  Cory  [1902]  1  K.  B.  (Eng.)  38, 
71  L.  J.  K.  B.  N.  S.  72,  50  Week.  Rep.  131, 
85  L.  T.  N.  S.  499,  18  Times  L.  R.  28, 
66  J.  P.  116,  6  W.  C.  C.  62.  Collins,  M.  R., 
said:  "We  now  find  this  particular  kind 
of  construction  being  used  for  the  purposes 
of  a  wharf,  and  it  is  adapted  for  being 
used  at  a  greater  distance  from  the  shore 
L.R.A.1936A. 


into  the  bed  of  the  river,  but  is  not 
connected  with  the  shore  except  by  boats, 
is  a  "wharf."  67 

Whether  a  space  not  immediately  con- 
tiguous to  the  area  appropriated  to  the 
ships  themselves  is  embraced  under  one 
or  other  of  the  terms  "dock,  wharf,  or 
quay"  is  determined  as  a  question  of 
fact,  with  reference  to  the  elements  of 
distance,  the  intervention  of  barriers, 
and  the  uses  to  which  the  space  was 
put.68 

In  a  number  of  decisions  in  the  court 
of  appeal  and  in  the  court  of  session, 
the  view  was  at  first  taken  that  a  ship, 
although  in  a  dock,  was  not  itself  a 
"dock,"  and  workmen  at  work  therein 
were  not  in  the  protection  of  the  stat- 
ute.69 But  later,  in  a  case  in  the  House- 
of  Lords,  it  was  held  that  compensation 
was  recoverable  where  one  of  a  gang  of 
ship  repairers  fell  from  the  gangway 
leading  to  the  vessel,  which  was  lying 

than  an  ordinary  wharf,  so  as  to  save  time 
and  labor.  It  seems  to  me  that  it  clearly 
was  intended  that  structures  of  this  kind 
should  be  included  within  the  term  'wharf 
as  used  in  the  factory  acts.  There  is  no 
real  difference,  except  the  distance  from 
the  shore,  between  this  construction  and 
that  which  has  always  been  known  as  a 
wharf.  I  think,  therefore,  that  this  thing 
must  be  held  to  be  a  wharf  within  the 
meaning  of  §  7." 

68  Recovery    was    sustained    in    Kenny   v. 
Harrison    [1902]    2   K.    B.    (Eng.)    168,    71 
L.  J.  K.  B.  N.  S.  783,  87  L.  T.  N.  S.  318, 
where   a   workman    was    injured   while    re- 
moving timber  from  a  stack  upon  a  piece 
of  land  within   the  ambit  of  a  system  of 
docks    belonging    to    a    railway    company, 
which    had    been    left   by    the    company    to 
timber  merchants  for  the  storage  of  timber. 
This    land    was   about   40   yards    from    the 
water,  and  between   it   and  the   water  ran 
the  lines  of  a  dock  railway,  not  separated 
from  the  adjoining  wharf  by  any  fence  ol 
other  physical  barrier.     Timber  had   some- 
times   been    landed    from    the    dock    and 
brought  to  the  land,  but  during  the  year  of 
1900   all   the   timber   stacked    thereon    had 
been  landed  from  other  docks  forming  part 
of  the  dock  system  more  or  less  remote. 

But  recoverv  was  denied  in  Haddock  v. 
Humphrey  [1900]  1  Q.  B.  (Eng.)  609,  82 
L.  T.  N.  S.  72,  69  L.  J.  Q.  B.  N.  S.  327,  16 
Times  L.  R.  143,  64  J.  P.  86,  48  Week.  Rep. 
292,  where  a  workman  was  killed  while 
moving  a  log  of  timber  in  one  of  the  yards 
near  a  wharf  leased  to  a  firm  of  timber  mer- 
chants. 

69  In   Flowers   v.   Chambers    [1899]    2   Q. 
B.  (Eng.)  142,  1  W.  C.  C.  51,  where  a  laborer 
engaged  in  discharging  refuse  and  manure 
from  a  vessel  into  barges  was  injured  while 
engaged  in  moving  a  barge  by  falling  from 
one  deck  of  the  vessel  to  another,  compen- 
sation was  denied.    A.  L.  Smith,  L.  J.,  said: 


204 


WORKMEN'S  COMPENSATION. 


in  the  dock  for  repairs.70  This  decision 
was  construed  to  mean  that  every  dock 
and  wharf  was  a  "factory,"  and  all  work 
of  whatsoever  kind  done  on  a  ship  in  a 
dock  was  within  the  statute.  The  follow- 
ing cases  take  the  view  that  Raine  v.  Job- 
son,  (Eng.)  supra,  laid  down  the  broad 
principle  that  any  workman  injured  while 
at  work  in  a  vessel  in  a  dock  is  entitled 
to  compensation  for  his  injuries,  al- 


though in  some  of  these  cases  the  facts- 
are  such  that  a  recovery  could  be  sus- 
tained on  other  grounds,  and  the  decision 
itself  turned  upon  other  points.71 

But  in  1905  there  was  another  House 
of  Lords  decision  to  the  effect  that  the 
mere  fact  that  a  workman  is  injured 
while  at  work  in  a  vessel  which  is  float- 
ing in  a  dock  does  not  entitle  him  to  com- 
pensation, and  that  a  seaman  injured 


"The  question  for  our  decision  is  not 
whether  this  dock  was  a  factory  within  the 
meaning  of  the  act,  and  I  do  not  decide 
that  point;  the  only  question  for  us  is 
whether  a  man  employed  on  a  ship  lying  in 
a  dock  is  employed  on,  in,  or  about  a 
dock  within  the  meaning  of  this  act.  I 
think  that  he  is  not." 

Following    Flowers    v.    Chambers    (Eng.) 
supra,    it    was    held    in    Durrie    v.    Warren 
(1898)   15  Times  L.  R.   (Eng.)  365,  1  W.  C. 
C.  78,  that  a  boy  working  on  a  staging  out- 
side a  ship,  being  engaged   in  assisting  to  | 
screw   up   the  doors  of  the   ship  after  the  i 
loading  was  completed,  was  not  within  the  { 
statute,   since  the  ship   was   not  a   "dock," 
and  the  staging  was  not  machinery  or  plant 
used  in  the  process  of  loading  and  unload- 
ing. 

Recovery  was  also  denied  in  the  following 
Scotch  cases  under  the  circumstances  in- 
dicated: 

Jackson  v.  Rodger  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  533,  37  Scot.  L.  R.  390,  7 
Scot.  L.  T.  76  (where  the  court  emphasized 
the  fact  that  the  fitting  of  the  engines  in 
a  steamer,  the  work  in  which  the  servant 
was  engaged,  was  being  done  without  the 
aid  of  any  steam  power). 

Laing  v.  Young  (1900)  3  Sc.  Sess.  Cas. 
5th  series,  31,  38  Scot.  L.  R.  28.  8  Scot.  L.  j 
T.  230  (act  held  not  to  be  applicable  to  a 
lighter  fitted  with  machinery,  the  property 
of  and  worked  by  stevedores,  which  was 
employed  in  raising  goods  from  the  hold 
to  the  deck  of  a  vessel,  moored  between  the 
lighter  and  the  quay.) 

Healy  v.  Macgregor  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  634,  37  Scot.  L.  R.  454,  7 
Scot.  L.  T.  402  (act  held  not  to  be  appli- 
cable where  the  work  of  loading  or  unload- 
ing a  ship  is  done  by  servants  on  board  her, 
and  by  means  of  her  own  machinery). 

Aberdeen  Steam  Traveling  &  Fishing  Co. 
v.  Peters  (1899)  1  Sc.  Sess.  Cas.  5th  series, 
786,  36  Scot.  L.  R.  573,  6  Scot.  L.  T.  373 
(act  held  not  to  be  applicable  to  the  work 
of  loading  or  unloading  by  means  of  machin- 
ery which  forms  part  of  the  apparatus  of  a 
ship  lying  in  a  dock);  Aberdeen  Steam 
Traveling  Co.  v.  Kemp,  cited  in  Ruegg,  Em- 
ployers' Liability,  4th  ed.  p.  211,  note  (x). 

70  Raine  v.  Jobson  [1901]  A.  C.  (Eng.) 
404,  70  L.  J.  K.  B.  N.  S.  771,  49  Week.  Rep. 
705,  85  L.  T.  N.  S.  141,  17  Times  L.  R.  627. 
The  Earl  of  Halsbury,  L.  C.,  said:  "It 
would  be,  to  my  mind,  a  most  unreasonable 
and  extraordinary  extension  of  that  im- 
munity given  to  persons  interested  in  sea- 
faring adventure,  to  suppose,  because  the 
L.R.A.1916A. 


accident  happened  in  or  upon  a  ship,  that 
therefore  it  is  to  be  excluded  from  the  op- 
eration of  the  act  of  Parliament  generally." 
Lord  Shand  said:  "The  case  is  entirely 
different  from  that  of  a  ship  at  sea,  where 
the  seaman  who  is  injured  is  incurring 
only  the  ordinary  maritime  risks  of  men  en- 
gaged in  navigation.  It  is  a  case  of  ship- 
builders or  repairers  who  were  in  the  use 
and  occupation  of  a  dock  or  factory  as 
defined  in  the  statute,  having  servants 
working  for  them,  one  of  whom  sustained 
an  accident  with  the  fatal  result  described 
in  the  evidence.  I  cannot  see  any  ground 
upon  which  it  can  be  held  that  the  employ- 
ers and  their  workmen  were  not  within  the 
purview  and  terms  of  the  statute." 

The  decision  in  Merrill  v.  Wilson  [1901] 
1  K.  B.  (Eng.)  35,  70  L.  J.  Q.  B.  N.  S, 
97,  65  J.  P.  53,  49  Week.  Rep.  161,  83  L.  T. 
N.  S.  490,  17  Times  L.  R.  49,  3  W.  C.  C. 
155,  in  which  it  was  not  disputed  that  the 
quay  upon  which  the  applicant  was  work- 
ing in  unloading  a  vessel  was  capable  of 
being  a  factory,  was  approved,  and  the  in- 
ference was  drawn  by  later  cases  that  the 
House  of  Lords  intended  to  overrule  the 
earlier  decisions,  which  it  was  apparently 
assumed  were  in  conflict  with  the  decision, 
in  Raine  v.  Jobson  (Eng.)  but  as  a  matter 
of  fact  the  only  mention  of  any  of  the  ear- 
lier cases  was  a  statement  by  one  of  the 
Lords  that,  as  between  Merrill  v.  Wilson 
and  Flowers  v.  Chambers  (Eng.)  supra,  he 
preferred  the  former  case. 

71  A  workman  engaged  in  loading  or  un- 
loading a  vessel  lying  in  a  dock  is  within 
the  act.  Cattermole  v.  Atlantic  Transport 
Co.  [1902]  1  K.  B.  (Eng.)  204,  50  Week. 
Rep.  129,  85  L.  T.  N.  S.  513,  18  Times  L. 
R.  102,  71  L.  J.  K.  B.  N.  S.  173,  66  J.  P. 
4,  4  W.  C.  C.  28. 

And  in  Griffin  v.  Houlder  Line  [1904]  1 
K.  B.  (Eng.)  510,  73  L.  J.  K.  B.  N.  S.  202, 
68  J.  P.  213,  52  Week.  Rep.  323,  90  L.  T. 
N.  S.  142,  20  Times  L.  R.  255,  6  W.  C.  C. 
107,  it  was  held  that  a  seaman  injured 
while  clearing  out  the  hold  of  a  vessel 
moored  to  buoys  preparatory  to  going  to 
sea  was  within  the  statute.  This  case  was, 
however,  subsequently  reversed  by  the 
House  of  Lords.  See  note  7,  infra. 

A  ship  which  is  being  unloaded,  while 
lying  at  quay,  by  means  of  a  steam-winch 
derrick  on  board  of  it,  is  a  factory.  Reid 
v.  Anchor  Line  (1903)  5  Sc.  Sess.  Cas.  5th 
series,  435,  40  Scot.  L.  R.  352,  10  Scot.  L. 
T.  591. 

A  firm  of  employers  engaged  in  painting 
and  plumbing  a  ship  lying  in  a  dock,  who 


DOCK,  WHARF,  QUAY. 


205 


while  discharging  his  ordinary  duties  in 
such  ship  is  not  within  the  act.72  There 
is  nothing  apparently  in  the  actual  de- 
cision which  conflicts  with  the  earlier 
decision  of  the  same  court,  but  from  the 
language  used  by  the  various  judges  it 
is  .exceedingly  difficult  to  determine  the 
precise  ground  of  this  decision.  The  fol- 
lowing extract  from  the  judgment  of 
Romer,  L.  J.,  in  the  court  of  appeal,73 
seems  to  be  a  fair  statement  of  the  prin- 
ciples laid  down  in  that  decision :  "Now 
it  appears  to  me  that  the  case  is  really 
governed  by  the  principle  of  the  de- 
cision in  Houlder  Line  v.  Griffin  (Eng.) 
supra;  for,  doing  the  best  I  can  (and  I 
hope  I  have  been  successful)  to  extract 
from  the  judgments  of  the  majority  of 
the  Lords  who  decided  that  case,  the 
principles  upon  which  they  decided  it,  I 
think  it  appears  that  two  principles  were 
laid  down:  (1)  That  seamen  employed 
in  performing  their  ordinary  duties  as 
seamen  afloat  and  on  board  the  ship  were 


outside  the  general  provisions  of  the 
workmen's  compensation  act  1897,  unless, 
of  course,  there  was  anything  special  in 
their  work  to  take  them  outside  the  or- 
dinary position  of  seamen;  and  (2)  that 
a  ship  afloat  in  a  dock  does  not  of  neces- 
sity become  part  of  the  dock  or  premises 
within  the  dock,  so  that  the  owner  of  a 
ship  which  was  afloat  within  a  wet  dock 
would  not,  merely  because  of  that  cir- 
cumstance, become  'the  person  having  the 
actual  use  or  occupation  of  a  dock  or  of 
any  premises  within  the  same  or  form- 
ing part  thereof/  so  as  to  be  deemed  to 
be  the  occupier  of  a  factory.  You  must 
look,  as  I  gather  from  that  case,  to  the 
circumstance  to  see  whether  the  owners 
have  brought  themselves  or  not,  by  some- 
thing special  that  they  are  doing,  within 
the  operation  of  the  act." 

The  lower  courts,  however,  do  not 
agree  as  to  the  precise  basis  of  this 
decision.  It  .admittedly  prevents  recov- 
ery in  the  case  of  an  injury  to  a  seaman 


sent  employees  to  do  the  work,  are  occu- 
piers of  the  vessel,  notwithstanding  that 
some  members  of  the  crew  were  in  charge 
of  the  ship  for  the  owners.  Bartell  v.  Gray 
[1902]  1  K.  B.  (Eng.)  225,  71  L.  J.  K.  B.  N. 
S.  115,  66  J.  P.  308,  50  Week.  Rep.  310,  85  L. 
T.  N.  S.  658,  18  Times  L.  R.  70,  4  W.  C.  C. 
95.  Stirling,  L.  J.,  said:  It  "has  been  said 
by  the  master  of  the  rolls  there  are  two 
questions  in  this  case:  First,  whether  the 
ship  is  to  be  regarded  as  a  factory;  secondly, 
whether  the  respondents  are  undertakers. 
Now,  as  to  the  first  question,  after  the  case 
of  Raine  v.  Jobson  (Eng.)  supra,  I  do  not 
feel  any  difficulty.  A  dock  is  a  factory;  a 
ship  in  a  dock  is  in  a  factory;  an  accident 
on  a  ship  in  a  dock  is  an  accident  in  a  fac- 
tory." 

A  workman  who  had  served  as  ship's 
carpenter  on  board  a  ship  during  one  voy- 
age, and  was  engaged  for  her  next  voyage, 
and  in  the  interval  between  the  voyages  was 
employed  by  the  shipowners  in  the  work  of 
repairing  the  ship,  is,  while  engaged  in  un- 
shackling the  ship's  cable,  in  order  to  turn 
it  end  for  end,  employed  as  a  workman  in 
the  repair  of  a  ship  in  or  about  a  "factory." 
and  the  shipowners  are  liable  to  pay  com- 
pensation, notwithstanding  he  was  doing 
work  that  he  might  have  been  required  to 
do  at  sea  Cayzer  v.  Dickson  (1005)  7  Sc. 
Sess.  Gas.  5th  series  (Scot.)  723.  Lord 
M'Laren  said:  "Comparing  Raine  v.  Jobson 
(Eng.)  with  Houlder  Line  v.  Griffin  (Eng.) 
it  is  plain  that  the  supreme  court  of  appeal 
has  kept  clearly  in  view  the  distinction 
between  the  case  where  the  dock  is  hired 
by  the  shipowner  for  the  purposes  of  re- 
pairing a  ship,  and  the  case  where  a  ship  is 
being  repaired  while  lying  in  the  water 
space  of  the  dock,  and  surrounded  by  the 
structure  of  a  dock  which  is  under  the  ad- 
ministration of  a  company  or  public  body." 
L.R.A.1916A. 


A  laborer  (not  a  seaman)  employed  to 
bring  his  employers'  barges,  which  were 
kept  in  the  employers'  dock  at  night,  from 
their  places  in  the  dock,  when  the  dock 
gates  were  opened,  alongside  vessels  in  an 
adjoining  river,  for  the  purpose  of  taking 
cargo  into  the  barges  and  bringing  it  back 
to  the  quay  of  the  dock,  to  be  there  un- 
loaded, is  within  the  statute,  since  the  dock 
is  a  "factory"  and  the  employers  are  the 
"occupiers"  of  it.  Hanlon  v.  North  City 
Mill.  Co.  (1903)  2  I.  R.  (Ir.)  163. 

72  Houlder   Line   v.   Griffin    [1905]    A.   C. 
(Eng.)    220,  7  W.  C.  C.  87.     The  Earl  of 
Halsbury,  L.  C.,  said:      "It  appears  to  me 
that  the  court  was  misled  by  the  case  of 
Raine  v.  Jobson    [1901]   A.  C.    (Eng.)   404, 
70  L.   J.   K.   B.   N.  S.   771,  49  Week.  Rep. 
705,  85  L.  T.  N.  S.  141,  17  Times  L.  R.  627, 
but  in  that  case  the  persons  sought  to  be 
made  responsible,  and  held  to  be  responsible, 
were  persons  who  had  hired  the   dock   for 
the    purpose    of    repairing    a    vessel,    and 
whether   there   was   a   vessel    in   it   or  not, 
they   were   liable   if  a   workman   met   with 
an  accident  in  that  dock  while  engaged  in 
working  there.     The  court  there  proceeded 
upon  the  assumption  that  the  then  defend- 
ants were  in  the  use  and  occupation  of  a 
dock   which   they   had   hired,   and   the   fact 
that  there  was  the  wooden  structure  of  a 
ship  in  it,  being  repaired,  did  not  prevent 
the  application  of  the  section  which  render- 
ed the  occupiers  of  a  dock  the  occupiers  of 
a   factory  within   the  meaning  of  the   act. 
If  in  that  case  the  then  defendants  had  the 
actual  use  and  occupation  of  the  dock,  as 
they  clearly  had,  it  was  impossible  to  deny 
that  they  were  'the  undertakers.'     This  is 
a  totally  different  case,  and  does  not  come 
within  the  meaning  of  that  decision." 

73  Smith  v.  Standard  Steam  Fishing  Co. 
[1906]  2  K.  B.   (Eng.)   275,  8  W.  C.  C.  76. 


206 


WORKMEN'S  COMPEN  S  AT  I  OX . 


doing  his  custoinery  duties  on  the  ship 
although  the  ship  may  be  in  the  dock.74 

And  see  the  cases  defining  the  term 
"undertakers,"  post,  209. 

1O.  "Warehouse." 

In  some  cases  it  was  held  that  the 
leading  idea  of  the  section  in  which  this 
expression  is  used  was  indicated  by  the 
preceding  words  "dock"  wharf,  or  quay," 
and  that  the  doctrine  of  ejusdem  generis 
required  that  a  warehouse,  in  order  to  be 
a  factory  within  this  section,  should  be 
near  water.75  But  this  opinion  did  not 
prevail  in  the  English  court  of  appeal.76 

In  one  case  the  term  "warehouse"  was 
held  to  involve  the  idea  of  "a  place  nor- 
mally of  considerable  size,  mainly  used 
for  the  storage  of  goods  in  bulk  or  in 

74  A  seaman  employed  on  a  steamer,  who 
is    injured   while   attending   the   boilers,   is 
not  entitled  to  compensation,  although  the 
vessel  was,  at  the  time,  moored  to  a  wharf, 
since  the  injury  occurred  while  the  appli- 
cant was  attending  to  his  usual  duties  as 
a  seaman.     Owens  v.  Campbell  [1904]  2  K. 
B.   (Eng.)   60,  73  L.  J.  K.  B.  N.  S.  634,  68 
J.  P.  410,  52  Week.  Rep.  481,  90  L.  T.  N. 
S.  811,  20  Times  L.  R.  459,  6  W.  C.  C.  54. 
This  decision  is  squarely  in  line  with  the 
actual  decision   of   the   House   of   Lords   in 
Houlder  Line  v.  Griffin   (Eng.). 

And  a  "rigger"  on  a  vessel  in  a  dock  is 
not  at  work  on,  in,  or  about  a  factory. 
Thompson  v.  Sinclair  [1906]  2  K.  B.  (Eng.) 
278,  note.  In  this  case,  as  reported  in  the 
note,  the  master  of  the  rolls  said  that  un- 
der Houlder  Line  v.  Griffin  (Eng.)  a  ship 
in  a  dock  is  not  a  factory. 

Fireman  engaged  in  such  ordinary  work 
as  sponging  the  tubes  of  a  steamship's 
boiler,  while  it  is  lying  in  a  dock,  cannot 
recover  on  the  ground  that  the  ship  was 
at  the  time  a  "factory."  Coyne  v.  Glasgow 
S.  Coasters  Co.  (1906-1907)  Sc.  Sess.  Cas. 
(Scot.)  112.  Lord  Kyllichy  said:  "It  is 
the  dock  which,  under  the  act,  is  the  fac- 
tory. The  ship  comes  in  only  when  it  be- 
comes constructively  part  of  the  dock.  Now 
the  repairs  here  in  question  involved  no 
use  of  the  docks  at  all.  They  had  no  con- 
nection with  the  dock  or  the  ship's  presence 
in  the  dock."  Lord  Atwell  said:  "I  think 
that  it  was  incumbent  upon  the  applicant 
to  show  that  this  dock  was  factory  for  one 
of  two  reasons:  either  that  it  was  then  be- 
ing occupied  for  the  purpose  of  loading  or 
unloading,  and  that  the  accident  occurred 
in  the  course  of  loading  or  unloading  the 
particular  ship;  or  otherwise,  that  it  was 
being  used  for  proper  factory  work,  such  as 
repairing  the  ship  or  the  ship's  machinery; 
and  repairing  in  the  proper  sense  of  the 
term;  viz.,  executing  such  repairs  as  are 
not  merely  incidental  to  every  voyage  on 
which  the  ship  is  engaged,  but  such  as 
might  be  let  out  to  a  proper  contractor  or 
engineer  to  perform." 

75  In  M'Ewan  v.  Perth  (1905)  7  Sc.  Sess. 
L.R.A.1916A. 


large  quantities,  and  in  which  conse- 
quently the  dangers  incident  to  the  hand- 
ling of  goods  in  bulk  or  in  large  quan- 
tities might  naturally  arise."  77  A  place 
used  in  connection  with  a  wholesale  busi- 
ness for  the  purpose  of  storing  goods  is 
a  warehouse ;  78  a  room  or  a  cellar  under 
a  shop  maintained  by  a  builder  and  con- 
tractor, which  is  stored  with  building 
material,  is  a  warehouse.79  But  if  the 
storage  of  goods  is  merely  ancillary  to  a 
retail  business,  the  place  where  they  are 
stored  is  held  not  to  be  a  warehouse.80 
The  court  of  appeal  has  held,  however, 
that  there  is  no  absolute  rule  of  law  that 
a  store  attached  to  retail  business  can- 
not be  a  warehouse,  and  the  case  was  sent 
back  to  the  county  court  judge  because 
he  had  so  held.81 


Cas.  5th  series  (Scot.)  714,  the  term  "ware- 
house" was  construed  as  meaning  only  a 
warehouse  connected  with  shipping  work. 

A  warehouse  to  be  within  the  act  must 
be  connected  with  docks  and  quays.  Smith 
v.  Turner  (1901;  C.  C.)  3  W.  C.  C.  (Eng.) 
143 

WWfllmott  v.  Paton  [1902]  1  K.  B. 
(Eng.)  237,  71  L.  J.  K.  B.  N.  S.  1,  66  J.  P. 
197,  50  Week.  Rep.  148,  85  L.  T.  N.  S.  569, 
18  Times  L.  R.  48,  4  W.  C.  C.  65  (holding 
that  a  yard  or  depot  5  acres  in  extent,  and 
having  sheds  upon  it,  which  was  used  for 
storing  old  iron,  is  a  warehouse). 

77  Colvine  v.  Anderson  &  Gibb  (1902)  5  Sc. 
Sess.  Cas.  5th  series,  255,  40  Scot.  L.  R.  231, 
10  Scot.  L.  T.  482. 

78  Green  v.  Britten  [1904]  1  K.  B.  (Eng.) 
350,  73  L.  J.  K.  B.  N.  S.  126,  68  J.  P.  139, 
52  Week.  Rep.  198,  89  L.  T.  N.  S.  713,  20 
Times  L.  R.  116,  6  W.  C.  C.  82. 

79  Evans  v.  Wilson   (1907;   C.  C.)   124  L. 
T.  Jo.  (Eng.)  201,  1  B.  W.  C.  C.  148. 

80  A  loft  used   for  the  storage  of  goods 
sold  by  a  co-operative  store  in  the  ordinary 
course    of    business,   storage   being    merely 
ancillary  to  the  business  carried  on,  is  not 
a  warehouse.    Hunt  v.  Grantham  Co-op.  Soc. 
(1904;   C.  C.)    112  L.  T.  N.  S.    (Eng.)    364, 
4  W.  C.  C.  67. 

Where  the  storage  of  goods  is  merely  an- 
cillary to  the  general  business  of  a  retail 
store,  it  is  not  a  warehouse  merely  because 
goods  are  stored  on  the  premises.  Burr  v. 
William  Whiteley  (1902)  19  Times  L.  R. 
(Eng.)  117,  5  W.  C.  C.  102. 

To  the  same  effect  was  the  decision  in 
Colvine  v.  Anderson  &  Gibb  (1902)  5  Sc. 
Sess.  Cas.  5th  series,  255,  40  Scot.  L.  R.  231, 
10  Scot.  L.  T.  482,  in  which  Lord  Kinross 
said:  "While  it  may  be  difficult  to  define 
'warehouse,'  I  am  of  opinion  that,  as  used 
in  the  act  of  1897,  it  involves  the  idea  of  a 
place  normally  of  considerable  size,  mainly 
used  for  the  storage  of  goods  in  bulk  or 
in  large  quantities,  and  in  which  conse- 
quently the  dangers  incident  to  the  hand- 
ling of  the  goods  in  bulk  or  in  larger  quan- 
tities might  naturally  arise." 

81  Moreton  v.  Reeve  [1907]  2  K.  B.  (Eng.> 


LOADING  OR  UNLOADING  SHIP. 


207 


An  open  space  is  not  a  warehouse  sim- 
ply because  it  is  used  for  the  storage  of 
goods.82  And  an  uncovered  railroad 
goods  yard  is  not  a  warehouse.83 

A  transit  shed  on  a  dock,  taken  by  the 
postoffice  for  the  storage  of  parcels  dur- 
ing the  Christmas  season,  is  a  factory, 
so  that  an  employee  of  a  firm  of  carriers 
employed  by  the  postoffice,  who  is  in- 
jured while  at  work  therein,  is  within  the 
act.83a 

A  large  stabling  and  yard  at  which 
600  or  700  horses  were  stabled,  and  150 
omnibuses  were  put  up  for  the  night, 
where  3  tons  of  fodder  were  usually  kept, 
and  where  there  was  a  farrier's  forge  and 
shop  for  shoeing  the  horses,  in  which 
was  kept  a  considerable  quantity  of 
horseshoes  to  be  used  in  shoeing  the 
horses,  is  not  a  warehouse.84 

11.  Machinery  used  in   the  process  of 
loading  or  unloading  a  ship." 

— These  words  import  either  a  land- 
ing of  something  from  a  ship,  or  a  load- 
ing on  the  ship  from  the  land.85  They 


are  sufficiently  comprehensive  to  cover 
the  work  of  replacing  the  iron  beams 
across  a  hatchway  after  the  actual  stow- 
ing of  the  goods  has  been  completed.86 
But  they  are  not  applicable  to  a  steam 
winch  on  a  ship's  deck,  which  is  being 
used  for  the  purpose  of  loading  goods 
from  a  lighter;  87  nor  to  gangway  doors 
through  which  cargo  is  taken  into  or  dis- 
charged from  a  ship;  88  nor  to  a  staging 
outside  a  ship,  on  which  the  servant 
was  standing  to  screw  up  the  iron  doors 
of  a  ship  after  the  loading  was  com- 
pleted.89 

Under  the  factory  act  of  1895,  with 
reference  to  machinery  for  loading  and 
unloading  a  vessel,  there  were  no  words 
to  include  a  case  where  a  vessel  moored 
in  a  river  was  unloading  her  cargo  into 
lighters.  But  the  factory  act  of  1901 
has  been  held  to  be  broad  enough  to  in- 
clude such  an  operation.90  Under  this 
decision  it  would  seem  that  any  amend- 
ments to  the  factory  act  subsequent  to 
1906  were  automatically  made  portions 
of  the  compensation  act  of  that  year. 


401,  76  L.  J.  K.  B.  N.  S.  850,  97  L.  T.  N.  S. 
63,  9  W.  C.  C.  72.  In  this  case  the  respond- 
ent was  a  furniture  dealer  having  two 
shops  in  different  streets  and  also  a  build- 
ing consisting  of  two  stories,  which  he 
called  a  warehouse,  in  which  he  kept  old 
furniture  which  he  repaired,  and  also  a 
quantity  of  new  furniture;  the  respondent 
also  kept  materials  for  repairs  in  the  build- 
ing in  large  quantities.  The  court  of  appeal 
said  that  such  a  building  might  be  found  to 
be  warehouse. 

82  An  uncovered  yard  used  to  store  ma- 
terial for  the  repair  of  roads  and  drains  and 
for  other  works  executed  by  the  owners  is 
not  a  warehouse   in  the  ordinary  sense  of 
the  word,  and  therefore  not  a  factory  with- 
in the  meaning  of  the  workmen's  compen- 
sation act  1897.     M'Ewan  v.  Perth   (1905) 
7   Sc.   Sess.  Cas.  5th  series    (Scot.)    714. 

So,  a  dumping  ground  is  not  a  warehouse 
or  factory,  even  if  some  of  the  old  material 
is  sometimes  sold.  Buckingham  v.  Fulham 
(1905)  69  J.  P.  (Eng.)  297,  58  Week.  Rep. 
628,  21  Times  L.  R.  511,  3  L.  G.  R.  926,  7 
W.  C.  C.  79. 

83  Tench  v.  Fish    (1901;    C.  C.)    3  W.   C. 
C.   (Eng.)    140. 

SSaFogarty  v.  Wallis  [1903]  2  I.  R.  (Ir.) 
522. 

84  Johnson    v.    London    General    Omnibus 
Co.  (1905;  C.  C.)  7  W.  C.  C.  (Eng.)  83. 

85  Where  a  ship  was  unloading  in  a  dock 
by  means  of  a  crane  on  the  quay  hired  by 
her   owners,   and   a   workman   employed   by 
them   in   unloading   her   was   killed   by   the 
explosion  of  a  case  of  percussion  caps  which 
he    was    placing    in    a    basket    attached    to 
the  chain  of  a  crane  for  the  purpose  of  its 
being    hoisted    out    of    the    ship    onto    the 
quay,  it  was  held  that  the  accident  arose 
out  of,  and  in  the  course  of,  the  workman's 
L.R.A.1916A. 


employment  on  or  about  machinery  used 
in  the  process  of  unloading  to  a  quay  within 
the  meaning  of  the  act  of  1897.  Woodham 
v.  Atlantic  Transport  Co.  [1899]  1  Q.  B. 
(Eng.)  15,  68  L.  J.  Q.  B.  N.  S.  17,  79  L.  T. 
N.  S.  395,  47  Week.  Rep.  105,  15  Times  L. 
R.  51,  1  W.  C.  C.  52. 

This  decision  was  followed  in  another, 
where  a  workman  was  killed  while  engaged 
in  making  up  sets  of  bags  to  be  hoisted 
from  the  hold  of  a  ship  by  means  of  a 
crane  operated  by  a  man  on  the  quay. 
Lawson  v.  Atlantic  Transport  Co.  (1900) 
82  L.  T.  N.  S.  (Eng.)  77,  16  Times  L.  R. 
181,  2  W.  C.  C.  53. 

86  Stuart   v.   Nixon    [1901]    A.   C.    (Eng.) 
79,  70  L.  J.  Q.  B.  N.  S.  170,  65  J.  P.  388,  49 
Week.    Rep.    636,    84    L.    T.    N.    S.    65,    17 
Times  L.  R.  156,  3  W.  C.  C.  1. 

87  Hennessey   v.   McCabe    [1900]    1   Q.   B. 
(Eng.)    491,    2    W.    C.    C.    80.      Collins,   J., 
said:     "The  statute  is  so  drawn  that  it  is 
difficult   to  discover  what  it   really  means, 
and   it   is   indeed  not  easy  to  deal   with   it 
upon  the  broad  ground  of  common   sense." 

88  Medd   v.   Maclver    (1899)    15   Times  L. 
R.   (Eng.)   364,  1  W.  C.  C.  76. 

89Durrie  v.  Warren  (1899)  15  Times  L. 
R.  (Eng.)  365,  1  W.  C.  C.  78. 

90  Stevens  v.  General  Steam  Nav.  Co. 
[1903]  1  K.  B.  (Eng.)  890,  72  L.  J.  K.  B. 
N.  S.  417,  67  J.  P.  415,  51  Week.  Rep.  578, 
88  L.  T.  N.  S.  542,  19  Times  L.  R.  418,  5 
W.  C.  C.  95.  It  was  there  held  that  the 
modification  mentioned  in  the  interpretation 
act  1889  includes  additions;  and  that  con- 
sequently, in  the  definition  of  a  "factory" 
in  the  workmen's  compensation  act  1897, 
the  reference  to  the  factory  and  workshop 
act  1895  must  be  construed  as  if  it  were 
a  reference  to  the  provisions  of  §  104  of 
the  factory  and  workshop  act  1901,  so  as 


208 


WORKMEN'S  COMPENSATION. 


12.  "Machinery  temporarily  used  for 
the  purpose  of  constructing  a  build- 
ing." 

With  reference  to  the  clause  of  which 
these  words  form  a  portion,  it  was  in 
one  case  held  that  an  engine  shed  and 
room  containing  a  steam  engine  connect- 
ed with  a  mortar  pan  for  mixing  mortar 
for  use  on  a  building  near  at  hand  was 
a  "factory"  within  the  meaning  of  the 
workmen's  compensation  act.91 

g.  —  of  "engineering  work." 

These  descriptive  words  have  been  held 
applicable  to  the  employment  of  the  driv- 
er of  a  water  cart  used  to  sprinkle  a 
newly  laid  surface  before  it  is  rolled  by 
a  steam  roller;  92  to  the  work  of  making 
and  removing  wooden  moulds  for  cement 
where  machinery  driven  by  mechanical 
power  was  used  in  connection  with  the 
general  work ;  93  to  the  work  of  construct- 
ing streets  in  which  use  is  made  of  the 
steam  roller,  although  at  the  time  of  the 
injury  the  roller  was  not  being  used;94 
to  work  which  includes  the  hoisting  of 
iron  girders  by  means  of  a  steam  winch 
to  the  top  of  a  building  to  which  a  new 


story  is  being  added ;  9B  to  the  work  of 
connecting  a  house  drain  to  the  main 
sewer;96  to  the  work  of  laying  pipe 
for  water,  gas,  or  any  other  purpose ;  97 
to  the  work  of  digging  a  tunnel  under  a 
railroad ;  98  and  to  the  work  of  laying 
pipes  in  a  trench  to  be  connected  with 
a  reservoir.99  It  may  be  that  they  also 
embrace  work  on  a  steam  dredger.1  But 
they  do  not  cover  pulleys  worked  by  a 
winch ; 2  nor  the  operation  of  lifting 
an  air  compresser  by  means  of  a  hy- 
draulic jack,  for  the  purpose  of  taking 
it  away  on  a  truck  after  it  had  been  pur- 
chased from  the  party  who  had  used  it 
in  building  a  bridge ; 3  nor  the  construc- 
tion of  a  hydraulic  crane  without  the 
use  of  any  mechanical  power ;  *  nor  the 
work  of  repairing  a  boiler  by  hand ;  5 
nor  the  work  of  clearing  land  from  nat- 
ural growth  thereon.6 

A  lineman  employed  by  a  tramway 
company  to  repair  its  overhead  wires  is 
engaged  in  engineering  work  while  go- 
ing from  one  place  where  he  had  done 
some  repairing  to  another  place  where 
there  was  repairing  to  be  done.7 

A   workman   engaged    in   repairing    a 


to  include  in  the  definition,  among  other 
things,  machinery  used  in  the  process  of 
unloading  a  ship  in  a  navigable  river. 

91  McNicholas  v.  Dawson  [1899]  1  Q.  B. 
(Eng.)  773,  68  L.  J.  Q.  B.  N.  S.  470,  1  W. 
C.  C.  80. 

92Middlemiss  v.  Berwickshire  (1900)  2 
Sc.  Sess.  Cas.  5th  series,  392,  37  Scot.  L. 
R.  297,  7  Scot.  L.  T.  330. 

93  McGregor   v.   Wright    (1901;    C.   C.)    3 
W.  C.  C.  (Eng.)  121. 

94  Lord    v.    Turner    (1902;    C.   C.)    114   L. 
T.  Jo.  (Eng.)  133,  5  W.  C.  C.  87. 

95  Cosgrove  v.  Partington  (1900)  17  Times 
L.  R.  (Eng.)  39,  64  J.  P.  788. 

96  Coles    v.    Anderson     (1905)     69    J.    P. 
(Eng.)   201,  21  Times  L.  R.  204. 

97  Bennett  v.  Aird    (1899;    C.  C.)    107   L. 
T.  Jo.   (Eng.)   550,  1  W.  C.  C.  138.     It  was 
said   in   this  case   that   the  laying  of  pipe 
for  water,  gas,  or  for  any  other  purpose  is 
ejusdem  generis  with  the  work  of  construct- 
ing, altering,  or  repairing  sewers. 

98  Adams    v.    Shaddock    [1905]    2    K.    B. 
(Eng.)    859,   54   Week.   Rep.   97,   22   Times 
L.  R.  15,  75  L.  J.  K.  B.  N.  S.  7,  93  L.  T.  N. 
S.  725.     In  this  case,  a  workman  engaged 
in   digging   a   tunnel   under   a   railroad   for 
the  purpose  of  laying  telephone  wires  was 
held  to  be  engaged  in  the  alteration  of  a 
railroad  and  consequently   was  engaged   in 
engineering    work    within    the    meaning    of 
the  act. 

99  Atkinson  v.  Lumb  [1903]  1  K.  B.  (Eng.) 
861,  72  L.  J.  K.  B.  N.  S.  460,  67  J.  P.  414, 
51  Week.  Rep.  516,  88  L.  T.  N.  S.  789,  19 
Times  L.  R.  412. 

1  In  Chambers  v.  Whitehaven  Harbour 
Comrs.  [1899]  2  Q.  B.  (Eng.)  132,  80  L. 
L.R.A.1D16A. 


T.  N.  S.  586,  47  Week.  Rep.  533,  68  L.  J. 
Q.  B.  N.  S.  740,  15  Times  L.  R.  351,  this 
point  was  referred  to,  but  not  explicitly 
decided,  the  action  being  held  not  main- 
tainable for  another  reason. 

2  Wrigley  v.  Bagley  [1901]  1  K.  B.  (Eng.) 
780,  70  L.  J.  K.  B.  N.  S.  538,  65  J.  P.  372, 
49  Week.  Rep.  472,  84  L.  T.  N.  S.  415. 

3  Gibson    v.    Wilson    (1899)     1    Sc.    Sess. 
Cas.   5th   series,   1017,   36   Scot.   L.   R.   777, 
7  Scot.  L.  T.  65. 

4Belsey    v.    Sadler    (1899;    C.    C.)    1    W. 
C.  C.   (Eng.)   141. 

5  A    workman    engaged    in    repairing    a 
boiler,    where    the    work    was   all    done    by 
hand   and   no   mechanical   power   was  being 
used,  was  not  engaged  in  engineering  work. 
Cooper  &  Greig  v.  Adam  (1905)   7  Sc.  Sess. 
Cas.  5th  series  (Scot.)  681,  relying  on  Wrig- 
ley v.  Whittaker   [1902]   A.  C.   (Eng.)   299, 
71  L.  J.  K.  B.  N.  S.  600,  66  J.  P.  420,  50 
Week.    Rep.   656,   86    L.    T.   N.    S.    775,   18 
Times  L.  R.  559. 

6  The    work    of    clearing    land    from    the 
natural   growth   thereon   is   not  a  work   of 
construction,    alteration,    or    repair,    which 
is    intended    by   the   act    to   be    termed    an 
engineering  work.     Basanta  v.  Canadian  P. 
R.  Co.   (1911)   16  B.  C.  304. 

7  Rogers  v.  Cardiff  [1905]  2  K.  B.  (Eng.) 
832,  54  Week.  Rep.  35,  22  Times  L.  R.  9, 
75  L.  J.  K.  B.  N.  S.  22,  4  L.  G.  R.  1,  70  J.  P. 
9,  93  L.  T.  N.  S.  683.     The  court  took  the 
view  that  the  obligation  of  the  corporation 
extended  over  the  entire  tramway,  and  it 
would  not  be  proper  to  sever  the  two  acts 
of    repairing    and    try    them    as    separate 
engineering  works. 


LOADING  OR  UNLOADING  SHIP. 


209 


hydraulic  lift,  who  was  injured  while 
availing  himself  of  the  hydraulic  power 
of  the  lift,  partly  to  put  himself  in  a 
position  to  carry  out  the  repairs,  and 
partly  for  testing  purposes,  is  engaged 
in  engineering.8 

A  workman  injured  while  engaged  in 
the  erection  of  a  machine  of  which  no 
mechanical  power  is  needed  is  not  with- 
in the  protection  of  the  statute,  al- 
though mechanical  power  was  necessary 
to  carry  the  parts  of  the  machine  to  the 
floor  of  the  building  upon  which  the  ma- 
chinery was  erected.9 

Employment  on  a  chaff-cutting  ma- 
chine which  was  run  by  a  steam  engine 
and  let  out  to  farmers  is  not  within  the 
act,  since  such  a  machine  is  not  a  factory 
nor  is  the  operation  of  it  an  engineering 
work.10 

h.  —  of  "mine." 

The  provision  in  the  coal  mines  regu- 
lation act  1887,  §  75,  to  the  effect  that 
"in  this  act,  unless  the  context  other- 
wise requires,  'mine'  includes  .  .  . 
all  the  shafts,  levels,  planes,  works,  tram- 
ways, and  sidings,  both  below  ground 
and  above  ground,  in  and  adjacent  to  and 
belonging  to  the  mine,"  cannot  be  con- 
strued in  such  a  sense  as  to  enable  an  en- 
gine driver  to  recover  for  an  injury  re- 
ceived while  he  was  operating  his  engine 
on  his  employers'  private  railway  about 
|  of  a  mile  from  the  pit  mouth.  The 
words  "adjacent  to  and  belonging  to  the 
mine"  mean  "physically  adjacent  to  and 
belonging  to  the  mine  itself,"  and  not 
merely  belonging  to  the  owner.11 

Road  work  done  as  a  necessary  pre- 
liminary to  the  operation  of  a  mine  has 
been  held  to  be  a  "mine"  within  the  act, 


although  no  mine  in  actual  operation  may 
exist.12 

i.  —  of  "undertakers." 
1.  In   the  case  of  a   factory. 

Under  $  7  of  the  act  of  1897,  the  "un- 
dertaker" in  the  case  of  a  factory  is  the 
"occupier"  of  a  factory  within  the  mean- 
ing of  the  factory  acts  of  1878  to  1895; 
as  the  two  terms  are  synonymous  so  far 
as  the  construction  of  this  act  is  con- 
cerned, the  terms  are  used  interchange- 
ably, some  cases  making  use  of  one  term 
and  some  of  the  other. 

An  "undertaker"  with  relation  to  a 
factory  is  a  person  who  occupies,  and 
conducts  his  business  upon,  the  prem- 
ises where  those  processes  are  conducted 
which  constitute  the  place  of  work  or 
"factory"  within  the  meaning  of  the 
act.13  Accordingly  a  person  who,  for 
the  time  being,  has  the  actual  use  of 
a  "dock,  wharf,  or  quay,"  as  those  terms 
are  construed  is  liable  as  an  "undertaker" 
for  an  injury  received  by  one  of  his 
workmen,  while  engaged  in  any  of  the 
operations  with  a  view  to  which  the  use 
of  the  premises  has  been  obtained.  Thus, 
shipowners,  who,  while  acting  as  their 
own  stevedores,  have  the  temporary  use 
of  a  part  of  a  quay  for  the  purpose  of 
unloading  a  ship,  are  "occupiers"  of  a 
factory  and  consequently  "undertakers" 
within  the  meaning  of- the  act.1*  So,  .a 
person  using  machinery,  the  property  of 
another,  in  the  process  of  loading  a  ship 
from  a  quay,  is  an  undertaker.15 

As  a  ship  in  a  dock  may  be  a  factory, 
the  employer  who  is  doing  work  on  such 
a  ship  may  also  be  an  undertaker  within 
the  meaning  of  the  act.16  But  a  ship- 


STullock  v.  Waygood  [1906]  2  K.  B. 
(Eng.)  261,  75  L.  J.  K.  B.  N.  S.  557,  95  L. 
T.  N.  S.  223. 

» Murphy  v.  O'Donnell  (1906)  54  Week. 
Rep.  (Eng.)  149,  8  W.  C.  C.  70. 

lOWatkinson  v.  Crouch  (1899;  C.  C.) 
107  L.  T.  Jo.  (Eng.)  328,  1  W.  C.  C.  137. 

11  Turnbull     v.     Lambton     Collieries     Co. 
(1900)   82  L.  T.  N.  S.   (Eng.)   589. 

12  Ellison    v.    Longden    (1901)    18    Times 
L.  R.  (Eng.)  48. 

13  See  the  judgment  of   Smith,  L.  J.,   in 
Francis    v.    Turner    Bros.    [1900]    1    Q.    B. 
(Eng.)    480,   69   L.   J.   Q.   B.   N.   S.   182,   64 
J.  P.  53,  48  Week.  Rep.  228,  81  L.  T.  N.  S. 
770,  16  Times  L.  R.  105. 

1*  Where  the  owners  of  a  ship  moored 
alongside  of  a  quay,  who  acted  as  their 
own  stevedores,  had  the  use  of  the  portion 
of  the  quay  alongside  of  which  their  ship 
lay,  for  the  purpose  of  unloading  the  ship's 
cargo  onto  the  quay,  and  a  workman  em- 
ployed by  them  was  killed  through  an 
accident  arising  out  of,  and  in  the  course 
L.R.A.1916A. 


14 


of,  his  employment  on  the  quay,  the  ship 
owners  are  liable  as  "undertakers."  Mer- 
rill v.  Wilson  [1901]  1  K.  B.  (Eng.)  35, 
70  L.  J.  K.  B.  N.  S.  97,  65  J.  P.  53,  49 
Week.  Rep.  161,  83  L.  T.  N.  S.  490,  17 
Times  L.  R.  49. 

In  Hainsborough  v.  Ralli  Bros.  (1902) 
18  Times  L.  R.  (Eng.)  21,  it  was  held  that 
the  consignees  of  a  cargo  of  wheat,  who 
were  also  the  owners  of  the  vessel  in  which 
the  wheat  was  carried,  are  the  occupiers  of 
the  quay  alongside  of  which  the  vessel  is 
lying  while  being  unloaded. 

is'Carrington  v.  Bannister  [1901]  1  K. 
B.  (Eng.)  20,  70  L.  J.  K.  B.  N.  S.  31,  83 
L.  T.  N.  S.  457,  holding  that,  in  §  23  of  the 
factory  act  of  1895,  the  expression  "such 
machinery,"  as  last  used  in  the  latter  part 
of  the  section,  refers  to  the  "machinery 
and  plant"  mentioned  previously  in  clause 
(a),  and  not  to  the  "machinery"  mentioned 
in  clause  (b). 

16  Persons  who  are  in  the  actual  use  or 
occupation  of  a  dock  (or,  semble,  of  a 


210 


WORKMEN'S  COMPENSATION. 


owner  is  not  the  occupier  of  a  dock  mere- 
ly because  his  vessel  is  in  the  dock.17 

The  mere  fact  that  repairing  or  other 
work  is  being  done  on  a  vessel  in  a  dock 


does  not  make  the  shipowner  or  em- 
ployers making  the  repairs  the  occupier 
of  the  dock.18  So,  generally,  persons  en- 
gaged in  repairing  a  factory  or  the  ma- 


berth  in  a  dock),  and  employ  workmen 
in  cleaning  or  repairing  a  ship  in  the 
dock,  are  "undertakers"  within  the  mean- 
ing of  the  act,  and  liable  to  pay  compen- 
sation to  a  workman  injured  in  the  course 
of  his  employment.  Raine  v.  Jobson  [1901] 

A.  C.   (Eng.)  404,  70  L.  J.  K.  B.  N.  S.  771, 
49  Week.  Rep.  705,  85  L.  T.  N.  S.  141,  17 
Times  L.  R.  627. 

Stevedores  were  loading  a  vessel  in  a 
dock  by  means  of  machinery  The  cargo 
had  been  put  into  the  hold,  and  the  men 
employed  by  the  stevedores  were  "finish- 
ing off"  by  slinging  iron  beams  across  the 
hatchway.  The  machinery  having  become 
entangled,  one  of  the  workmen  went  to 
disentangle  it,  was  caught  by  it,  and  in- 
jured so  that  he  died.  Under  these  circum- 
stances it  was  held  by  the  House  of  Lords 
(Lord  Lindley  dissenting)  that  the  steve- 
dores were  occupying  a  "factory,"  namely, 
the  machinery,  within  the  meaning  of  the 
act,  and  that  the  deceased  was  injured  in 
the  course  of  his  employment  in  loading 
from  the  wharf,  the  process  of  loading  not 
being  complete  till  the  hatchway  was 
secured,  within  the  meaning  of  those  acts. 
Stuart  v.  Nixon  [1901]  A.  C.  (Eng.)  79, 
70  L.  J.  Q.  B.  N.  S.  170,  65  J.  P.  388,  49 
Week.  Rep.  636,  84  L.  T.  N.  S.  65,  17  Times 
L.  R.  156. 

A  shipbuilding  firm  which  has  sent  a 
newly-launched  ship  to  a  public  dock  to 
have  the  engines .  for  which  it  had  con- 
tracted with  another  firm  erected  and  fitted 
are  "undertakers."  Jackson  v.  Rodger 
(1899)  I  Sc.  Sess.  Cas.  5th  series,  1053,  36 
Scot.  L.  R.  851,  7  Scot.  L.  T.  76,  (1900)  37 
Scot.  L.  R.  390,  2  Sc.  Sess.  Cas.  5th  series, 
533,  7  Scot.  L.  T.  363. 

17  Houlder   Line   v.   Griffin    [1905]    A.   C. 
(Eng.)    220,  7  W.  C.  C.  87,  74  L.  J.  K.  B. 
N.  S.  466,  92  L.  T.  N.  S.  580,  21  Times  L.  R. 
436,  53  Week.  Rep.  609. 

18  In   Smith   v.    Standard   Steam   Fishing 
Co.   [1906]  2  K.  B.   (Eng.)   275,  75  L.  J.  K. 

B.  N.  S.  640,  54  Week.  Rep.  582,  95  L.  T. 
N.  S.  42,  22  Times  L.  R.   578,  8  W.  C.  C. 
76,  following  Houlder  Line  v.  Griffin  (Eng.) 
the   actual   decision   was   that   a   carpenter 
engaged   in    repairing   a   trawl   board   of   a 
steam   trawl    moored    to    a   jetty   was   not 
entitled    to    compensation    for    injuries    re- 
ceived   while    engaged    in    that    duty.      It 
appears    from    the    judgments    given    that 
one  of  the  judges  based  the  decision  upon 
the  ground  that  the  carpenter  was  not  in- 
jured while  on  the  stone  structure  adjacent 
to  the  water,  but  in  the  ship,  which   was 
entirely   water   borne,  while   another  judge 
apparently    based    his   judgment    upon    the 
ground   that   since   the   trawl   was   floating 
in   the   water,   the   owners   of   it   could   not 
be  said  to  be  persons  having  the  actual  use 
or  occupation  of  a  dock. 

Compensation  was  denied  a  workman  in- 
jured while  replacing  a  shaft  in  a  ship,  in 
L.R.A.1916A. 


Harrison  v.  Oceanic  Steam  Nav.  Co.  [1907] 
2  K.  B.  (Eng.)  420,  note,  97  L.  T.  N.  S.  466, 
note. 

And  in  another  case  the  same  court  held 
that  millwrights  who  sent  an  employee  on- 
to a  vessel  in  a  dry  dock  to  make  some  re- 
pairs in  connection  with  the  insulating  of 
the  refrigerators  of  the  vessel  are  not  the 
occupiers  of  a  factory,  and  therefore  not 
undertakers  within  the  meaning  of  the  act. 
Burdon  v.  Gregson  [1906]  2  K.  B.  (Eng.) 
283,  75  L.  J.  K.  B.  N.  S.  644,  95  L.  T.  N.  S. 
45,  8  W.  C.  C.  76  Romer,  L.  J.,  said  that 
the  employers  were  not  using  the  dock  in 
any  true  sense  as  a  dock.  Houlder  Line  v. 
Griffin  (Eng.)  was  followed  by  all  of  the 
judges  delivering  judgment. 

Ship  repairers,  while  at  work  on  a  vessel 
in  a  wet  dock,  are  not  the  "occupiers"  of 
the  dock.  Morgan  v.  Tydvil  Engineering 
&  Ship  Repairing  Co.  (1908)  98  L.  T.  N.  S. 
(Eng.)  762,  24  Times  L.  R.  40«i,  1  B.  W.  C. 
C.  78. 

In  Handford  v.  Clark  [1907]  2  K.  B. 
(Eng.)  409,  76  L.  J.  K.  B.  N.  S.  958,  97  L. 
T.  N.  S.  124,  9  W.  C.  C.  87,  compensation 
was  denied  when  an  employee  of  engine 
makers  was  injured  while  doing  some  work 
on  the  engine.  Cozens-Hardy,  M.  R.,  said: 
"I  also  feel  it  impossible  to  say  in  any 
true  and  real  sense  of  the  word  that  there 
was  any  actual  use  or  occupation  of  any 
portion  of  the  quay  by  the  employers  in 
respect  of  the  transactions  which  we  have 
had  before  us."  After  referring  to  Smith 
v.  Standard  Steam  Fishing  Co.  and  Harri- 
son v.  Oceanic  Steam  Nav.  Co.  (Eng.) 
supra,  the  master  of  the  rolls  continued: 
"I  do  not  think  that  it  can  fairly  be  assert- 
ed or  assumed  that  those  cases  were  decid- 
ed simply  on  the  ground  that  the  ship 
itself  did  not  occupy  part  of  the  factory. 
It  was  manifest  to  everybody — and  the 
whole  argument  proceeded  upon  it — that 
the  vessel  in  those  cases  was  alongside  the 
wharf  or  quay,  or  connected  with  the 
wharf  or  quay  by  a  gangway  or  by  ropes  or 
something  of  that  kind.  And  those  deci- 
sions do,  it  seems  to  me,  amount  to  this, 
that  the  mere  fact  that  a  vessel  is  berthed 
alongside  a  quay,  and  that  in  some  sense, 
of  course,  the  quay  is  being  used  for  ob- 
taining access  to  or  from  the  land  to  the 
ship,  is  not  enough  to  bring  either  the  ves- 
sel itself  or  the  portion  of  the  quay  which 
it  so  uses  within  the  definition  of  'factory' 
under  the  act." 

In  Low  v.  Abernathy  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  722,  37  Scot.  L.  R.  506,  7 
Scot.  L.  T.  423,  it  was  held  that  the  mere 
fact  that  a  steamship  was  lying  in  a  dock 
while  a  workman  employed  by  a  firm  of 
engineers  was  engaged  in  repairing  the  boil- 
ers did  not  make  the  firm  "occupiers"  of  the 
dock. 

A  steamship  company  is  not  an  "occu- 
pier" of  a  quay  within  the  sense  of  §  7, 


LOADING  OR  UNLOADING  SHIP. 


211 


chinery  in  it  are  not  "occupiers"  of  a 
factory  so  as  to  be  undertakers  within 
the  meaning  of  the  compensation  act ; 19 
and  it  has  been  held  that  an  employer 
is  not  liable,  as  an  "undertaker,"  for  in- 
juries received  by  one  of  his  servants 
in  the  factory  of  another  person,  while 
he  was  engaged  in  removing  a  portion  of 
the  plant  which  was  to  be  transferred  to 
the  defendant's  own  factory.20 

Persons  under  contract  to  furnish  coal 
to  vessels  in  a  dock  are  not,  merely  be- 
cause of  that,  occupiers  of  the  dock.21 
And  the  agents  of  a  ship  owned  by  a  for- 
eign country  doing  business  abroad  are 
not  undertakers.22 

To  render  the  employer  an  "under- 
taker" it  is  not  necessary  that  his  pos- 
session of  the  premises  should  be  ex- 
clusive. All  that  is  requisite  is  that  he 


[  should  be  in  possession  so  far  as  may  be 
necessary  for  the  purpose  of  doing  the 
work  in  hand.  A  firm  of  employers  en- 
gaged in  painting  and  plumbing  a  ship 
lying  in  a  dock,  who  sent  employees  to 
do  the  work,  are  occupiers  of  the  vessel, 
nothwithstanding  some  members  of  the 
crew  are  in  charge  of  the  ship  for  the 
owners.23  And  persons  who  have  entered 
into  a  contract  to  make  pigeonholes  in 
what  is  admittedly  a  warehouse  within 
the  act,  and  who  have  such  use  or  oc- 
cupation of  the  premises  as  is  necessary 
for  the  performance  of  the  work,  which 
is  essential  to  the  use  of  the  warehouse 
for  the  purposes  for  which  it  is  required 
by  the  government,  are  the  occupiers  of 
the  warehouse  within  the  meaning  of  the 
act.24  And  the  occupants  of  a  small  hut 
on  a  dock,  engaged  in  supplying  horses 


subsec.  2,  of  the  act,  so  as  to  be  liable  for 
compensation  to  the  servant  of  a  contractor 
engaged  in  trimming  coal  on  the  wharf, 
preparatory  to  putting  it  on  board  one  of 
the  company's  vessels,  which  had  not  yet 
arrived,  although  a  particular  berth  in  the 
harbor  was  allowed  the  company  for  load- 
ing and  unloading  its  vessels,  and  it  had  an 
office  and  a  staff  of  servants  constantly 
employed  in  the  receipt  and  discharge  of 
cargo,  where  the  same  berth  was  also  used 
by  another  steamship  company,  which  also 
had  an  office  there,  and  when  the  berth 
was  not  required  by  either  of  these  com- 
panies the  harbor  master  allowed  other 
vessels  to  load  or  discharge  at  the  berth. 
Stewart  v.  Dublin  &  G.  Steam  Packet  Co. 
(1902)  5  Sc.  Sess.  Cas.  5th  series,  57,  40 
Scot.  L.  R.  41,  10  Scot.  L.  T.  343. 

So,  in  Bruce  v.  Henry  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  717,  37  Scot.  L.  R.  511,  7 
Scot.  L.  T.  421,  it  was  held  that  shipping 
agents  who  had  contracted  with  the  owners 
of  a  vessel  lying  at  a  dock  to  load  her  were 
not  the  "occupiers"  of  the  dock. 

19  A  firm  of  engineers  making  a  prelimin- 
ary run  for  the  purpose  of  testing  machin- 
ery in  a  building  belonging  to  a  cold  stor- 
company  were  denied  to  be  "occupiers  in." 
Purves  v.  Sterne  (1900)  2  Sc.  Sess.  Cas.  5th 
series,  887,  37  Scot.  L.  R.  696. 

In  Malcom  v.  M'Millan  (1900)  2  Sc.  Sess. 
Cas.  5th  series,  525,  37  Scot.  L.  R.  383,  7 
Scot.  L.  T.  364.  it  was  held  that  an  iron 
founder  was  not  liable  to  the  widow  of  a 
workman  who  was  killed  by  falling  from 
a  scaffold  while  he  was  doing  some  work  in 
a  soap  factory  to  which  he  had  been  sent 
for  that  purpose. 

A  firm  of  boiler  makers  are  not  "under- 
takers" within  the  meaning  of  the  act,  so 
as  to  he  responsible  for  injuries  to  a  work- 
man in  their  employ  who  was  injured  while 
repairing  a  boiler  in  a  spinning  mill  be- 
longing to  another  person.  Cooper  &  Greig 
v.  Adam  (1905)  7  Sc.  Sess.  Cas.  5th  series 
(Scot.)  681,  relying  on  Wrigley  v.  Whit- 
taker  [1902]  A.  C.  (Eng.)  299,  71  L.  J.  K. 
B.  N.  S.  600,  66  J.  P.  420,  50  Week.  Rep. 
L.R.A.1916A. 


656,   86   L.   T.   N.   S.   775,   18   Times   L.  R. 
559. 

20  In   Francis   v.    Turner   Bros.    [1900]    1 
Q.  B.   (Eng.)   478,  69  L.  J.  Q.  B.  N.  S.  182, 
64  J.   P.  53,  48  Week.  Rep.  228,  81   L.  T. 
N.  S.  770,  16  Times  L.  R.  105,  2  W.  C.  C. 
61,  it  was  held  that  employers  who  send  a 
workman  on  their  business  to  the   factory 
of  a  third  party  are  not,  while  the  work- 
man  is   engaged   therein,   the   occupiers   of 
said  factory. 

21  In  Stewart  v.  Darngavil  Coal  Co.  (1902) 
4  Sc.  Sess.  Cas.  5th  series,  425,  39  Scot.  L. 
R.  302,  9  Scot.  L.  T.  378,  it  was  held  that 
a   coal   dealer   who   was  under   contract   to 
deliver  coal   to   the   steamers   of   a   packet 
company  at  a  particular  berth,  who  sends 
the  coal  from  his  own  premises  to  the  dock 
when  required,  is  not  the  occupier  of  the 
dock. 

22  Shea  v.  Drolenvaux   (1903)   6  W.  C.  C. 
(Eng.)  93. 

23Bartell  v.  Gray  [1902]  1  K.  B.  (Eng.) 
225,  71  L.  J.  K.  B.  N.  S.  115,  66  J.  P.  308, 
50  Week.  Rep.  310,  85  L.  T.  N.  S.  658,  18 
Times  L.  R.  70. 

A  similar  doctrine  was  laid  down  in  Jack- 
son v.  Rodger  (1899)  1  Sc.  Sess.  Cas.  5th 
series,  1053,  36  Scot.  L.  R.  851,  7  Scot.  L. 
T.  76. 

The  decision  in  Bartell  v.  Gray  (Eng.) 
was  based  upon  Raine  v..  Jobson  [1901]  A. 
C.  (Eng.)  404,  70  L.  J.  K.  B.  N.  S.  771,  49 
Week.  Rep.  705,  85  L.  T.  N.  S.  141,  17 
Times  L.  R.  627,  3  W.  C.  C.  135,  the  effect 
of  which  was  greatly  modified  by  later 
decisions.  The  ultimate  decision  in  the 
Bartel  Case  is  apparently  in  conflict  with 
other  decisions  cited  supra. 

24  Weavings  v.  Kirk  [1904]  1  K.  B.  (Eng.) 
216,  73  L.  J.  K.  B.  N.  S.  77,  68  J.  P.  91, 
52  Week.  Rep.  209,  89  L.  T.  N.  S.  577,  20 
Times  L.  R.  152,  6  W.  C.  C.  95.  Collins, 
M.  R.,  said:  "It  appears  to  me  that  this 
question  is  really  decided  by  the  case  of 
Bartell  v.  Gray  [1902]  1  K.  B.  (Eng.)  225, 
71  L.  J.  K.  B.  N.  S.  115,  66  J.  P.  308,  50 
Week.  Rep.  310,  85  L.  T.  N.  S.  658,  18 
Times  L.  R.  70.  The  respondents  in  this 


212 


WORKMEN'S  COMPENSATION. 


and  men  for  hauling  wagons  loaded  with 
coal,  are  "occupiers"  of  the  dock.25  But 
a  person  who  has  a  mere  casual  interest 
in  a  warehouse  by  being  the  owner  or 
purchaser  of  a  parcel  of  goods  stored 
therein  is  not  an  "occupier"  thereof.26 

2.  In    the    case    of    engineering    work. 

A  person  may  be  an  undertaker  al- 
though he  supplies  labor  only.27  So, 
where  it  is  the  usual  practice  of  a  firm 
of  builders  to  enter  into  contracts  for 
pulling  down  and  rebuilding,  but  they 
invariably  sublet  the  work  of  pulling 
down,  they  are  "undertakers"  as  re- 
gards the  servants  of  the  subcontrac- 
tors.28 And  a  building  contractor  who  is 
erecting  a  tenement  for  himself  is  deemed 
to  be  within  that  description  in  such 
a  sense  as  to  be  liable  to  a  servant  of 
one  of  the  trading  firms  with  whom  he 
had  contracted  for  particular  parts  of  the 
work  which  are  not  being  executed  by 
his  own  workmen.29  But  the  owner  of  a 
building  who  contracts  with  someone  to 
execute  repairs  on  the  building,  and  does 
not  engage  in  the  work  himself,  has  been 
held  not  an  "undertaker."  30 

The  word  "undertaker"  is  not  restrict- 
ed to  persons  who  contract  for  the  con- 


case  had  all  such  occupation  of  a  consider- 
able space  in  a  warehouse  as  was  necessary 
to  enable  them  to  carry  out  the  work  which 
they  had  contracted  to  do.  It  was  argued 
that  they  did  not  occupy  any  part  of  the 
warehouse  qua  warehouse.  I  do  not  know 
that  it  is  necessary  that  they  should  so 
occupy  for  the  purposes  of  the  act,  or  that 
we  ought  to  go  beyond  the  words  of  the 
section  itself  in  this  respect;  but,  assuming 
that  it  is  necessary,  it  is  essential  to  the 
existence  of  a  warehouse,  and  its  use  as 
such  for  the  purposes  for  which  it  is  re- 
quired, that  works  or  repairs  of  the  kind 
which  the  respondents  had  contracted  to 
do  should  be  performed  within  it." 

25  Pacific  Steam  Nav.  Co.  v.  Pugh  (1907) 
23  Times  L.  R.  (Eng.)  622,  9  W.  C.  C.  39. 

26  Ramsay  v.  Mackie    (1904)    7   Sc.  Sess. 
Cas.  5th  series  (Scot.)  106. 

27Wagstaff  v.  Perks  (1902)  87  L.  T.  N. 
S.  (Eng.)  558,  51  Week.  Rep.  210,  5  W.  C. 
C.  110,  19  Times  L.  R.  112. 

28  Knight  v.  Cubitt  [1902]  1  K.  B.  (Eng.) 
31,  71  L.  J.  K.  B.  N.  S.  65,  66  J.  P.  52,  85 
L.   T.   N.    S.   526,   50   Week.   Rep.    113,    18 
Times  L.  R.  26. 

29  Stalker  v.  Wallace   (1900)    2   Sc.  Sess. 
Cas.  5th  series,  1162,  37  Scot.  L.  R.  898,  8 
Scot.  L.  T.  134. 

SOM'Gregor  v.  Dansken  (1899)  1  Sc.  Sess. 
Cas.  5th  series,  536,  36  Scot.  L.  R.  393  (Lord 
Young  dissenting). 

31  Mason  v.  Dean   [1900]   1  Q.  B.    (Eng.) 
770,  69  L.  J.  Q.  B.  N.  S.  358,  64  J.  P.  244, 
48  Week.  Rep.  353,  82  L.  T.  N.  S.  139,  16 
Times  L.  R.  212. 
L.R.A.1916A 


struction  of  a  building  as  a  whole.  Hence, 
where  a  building  over  30  feet  high  is 
being  constructed  by  means  of  a  scaffold- 
ing, and  the  work  of  construction  is 
carried  on  by  several  persons,  not  act- 
ing jointly,  but  each  of  them  contracting 
with  the  building  owner  for  the  construc- 
tion of  a  separate  substantial  part  of 
the  building,  each  of  them  is  an  "under- 
taker," and  is  liable  to  compensate  the 
workmen  employed  by  him  for  personal 
injury  sustained  by  them  in  the  course 
of  their  employment.  Every  workman 
employed  by  the  undertaker  upon  the 
building  is  within  the  act,  whatever  may 
be  the  nature  of  his  own  particular 
work.31  But  where  the  work  of  decorat- 
ing a  church  is  distinct  from  that  of  re- 
storing it,  the  undertaker  for  repairs  is 
not  liable  to  pay  compensation  for  in- 
jury to  the  workman  engaged  in  the 
decoration,  although  the  scaffolding  used 
is  put  up  by  the  undertaker.88 

It  was  at  first  held  that  a  subcontrac- 
tor for  engineering  work  is  not  an  "un- 
dertaker" within  the  meaning  of  the 
compensation  act.33  But  this  view  has 
now  been  pronounced  erroneous  by  the 
House  of  Lords.34 

An   employee   who,   under   a   contract 


And  see  Weavings  v.  Kirk  [1904]  1  K.  B. 
(Eng.)  213,  73  L.  J.  K.  B.  N.  S.  77,  68 
J.  P.  91,  52  Week.  Rep.  209,  89  L.  T.  N.  S. 
577,  20  Times  L.  R.  152  (employer  who  con- 
tracted to  cut  pigeonholes  in  building  others 
were  constructing,  held  to  be  "undertaker.") 

32  Hardy  v.  Moss  (1904;  C.  C.)  116  L.  T. 
Jo.  (Eng.)  201,  6  W.  C.  C.  68. 

33Cass  v.  Butler  [1900]  1  Q.  B.  (Eng.) 
777,  69  L.  J.  Q.  B.  N.  S.  362,  64  J.  P.  261, 
48  Week.  Rep.  309,  82  L.  T.  N.  S.  182,  16 
Times  L.  R.  227;  Cooper  v.  Davenport 
(1900)  16  Times  L.  R.  (Eng.)  266. 

34  Cooper  v.  Wright  [1902]  A.  C.  (Eng.) 
302,  71  L.  J.  K.  B.  N.  S.  642,  51  Week.  Rep. 
12,  86  L.  T.  N.  S.  776,  18  Times  L.  R.  622, 
holding  that  a  person  contracting  to  erect 
a  building  is  entitled  to  be  indemnified  by  a 
subcontractor  for  the  amount  for  which  he 
is  liable  to  a  workman  employed  by  the 
latter.  See  §  1,  subsec.  4  of  the  act. 

Cooper  v.  Wright  (Eng.)  was  followed  by 
Topping  v.  Rhind  (1904)  6  Sc.  Sess.  Cas.  5th 
series,  666,  41  Scot.  L.  R.  573,  12  Scot.  L. 
T.  88,  holding  that  a  subcontractor  for  orna- 
mental carving  work  which  was  part  of  the 
design  of  a  building  was  an  "undertaker," 
and  was  consequently  liable  to  indemnify 
the  principal  contractor  for  compensation 
paid  by  him  to  an  injured  workman.  To 
the  same  effect,  Evans  v.  Cook,  L.  &  Y.  Ins. 
Co.  [1905]  1  K.  B.  (Eng.)  53,  74  L.  J.  K.  B. 
N.  S.  95,  53  Week.  Rep.  81,  92  L.  T.  N.  S. 
43,  21  Times  L.  R.  42;  McCabe  v.  Jopling 
[1904]  1  K.  B.  (Eng.)  222,  73  L.  J.  K.  B. 
N.  S.  129,  68  J.  P.  121,  52  Week.  Rep.  358, 
89  L.  T.  N.  S.  624,  20  Times  L.  T.  119; 


AMERICAN  DECISIONS. 


213 


with  a  firm  engaged  in  building  opera- 
tions on  their  own  premises,  supplies  the 
labor  for  the  brick  work, — the  workmen 
so  supplied,  although  paid  by  him,  being 
under  the  control,  while  at  work,  of  the 
foreman  of  the  building  owners, — is  not 
an  "undertaker."  85 

A  firm  of  engineers  who  have  sold  a 
hay-cutting  machine  are  "undertakers"  as 
regards  one  of  their  workmen,  who  is 
injured  while  its  operation  is  being  test- 
ed.36 A  railroad  company  is  liable  as 
undertaker  for  injuries  to  a  workman  em- 
ployed in  "tipping"  coal  into  vessels, 
where  it  owns  the  machinery  by  which 
the  tipping  is  done,  although  the  work 
has  been  contracted  out  to  a  third  person 
who  employs  the  applicant.37 

j.  When  worlemen  employed  in  ship- 
building yard  are  not  excluded  from 
provisions  of  the  act. 

The  question  whether  a  dock  2  miles 
from  a  shipbuilding  yard  was  "near"  it 
was  held  to  be  a  question  of  fact,  not 
of  law.38  In  the  case  cited  the  court 
agreed  with  the  finding  of  the  arbitrator 
in  favor  of  the  servant,  as  having  been 
injured  "near"  the  yard.  A  ship  in  the 
harbor  not  more  than  1J  miles  from  a 
shipbuilding  yard  is  not  "near"  the 
yard.39  A  vessel  being  completed  100 
yards  away  from  the  quay  is  not  "about" 
a  quay.40 

Part  C.   American  decisions. 

XXIV.  Introduction   to   American   deci- 
sions. 

Although  the  American  compensation 
statutes  are  patterned  more  or  less  close- 


Wagstaff  v.  Perks  (1902)  51  Week.  Rep. 
(Eng.)  210,  87  L.  T.  N.  S.  558,  19  Times  L. 
R.  112. 

A  person  making  a  subcontract  to  do  the 
painting  in  a  church  that  is  being  restored 
is  an  undertaker.  Hardy  v.  Moss  (1904; 
C.  C.)  116  L.  T.  Jo.  (Eng.)  201,  6  W.  C.  C. 
68. 

sspercival  v.  Garner  [1900]  2  Q.  B. 
(Eng.)  406,  69  L.  J.  Q.  B.  N.  S.  824,  64 
J.  P.  500,  16  Times  L.  R.  396,  holding  that 
the  persons  from  whom  recovery  should 
have  been  sought  were  the  firm  of  con- 
tractors. 

36  Reid  v.  Fleming  (1901)  3  Sc.  Sess.  Cas. 
5th  series,  1000,  38  Scot.  L.  R.  720,  9  Scot. 
L.  T.  113. 

37  Hanson  v.  Great  Central  R.  Co.   (1901; 
C.  C.)  3  W.  C.  C.  (Eng.)  152. 

SSM'Millan  v.  Barclay  (1899)  2  Sc.  Sess. 
Cas.  5th  series,  91,  37  Scot.  L.  R.  61,  7  Scot. 
L.  T.  214. 

39Streeter  v.  Courtney  (1902;  C.  C.)  114 
L.  T.  Jo.  (Eng.)  217,  5  W.  C.  C.  123. 

40  Owen  v.  Clark  (1901;  C.  C.)  3  W.  C.  C. 
(Eng.)   170. 
L.R.A.1916A. 


ly  after  the  English  act,  none  of  them  are 
I  couched  in  the  precise  terms  of  that  act, 
!  and  consequently  the  conclusions  of  the 
I  courts  as  to  the  proper  construction  to 
be  given  to  the  various  provisions  of  the 
different  statutes  do  not  necessarily  fol- 
low the  decisions  of  the  English  courts. 
Nevertheless,   the   American   courts,   al- 
though not  considering  the  latter  deci- 
sions as  binding,  do  attach  great  weight 
to  them  and  frequently  cite  them  as  prec- 
I  edents.     It  has  therefore  been  deemed 
|  wise  to  group  and  arrange  the  American 
decisions  so  far  as  the  character  of  the 
statutes  permit,  in  the  same  general  man- 
ner as   the   English   decisions  were  ar- 
ranged in  the  earlier  part  of  this  note, 
where,  it  is  to  be  observed,  the  classifi- 
cation follows  the  order  of  the  clauses 
in  the  English  act.     By  means  of  fre- 
quent cross  references  a  comparison  of 
the  decisions  can  be  easily  and  quickly 
made. 

Inasmuch  as  practically  every  one  of 
the  statutes  differs  in  some  respects  from 
all  the  others,  and  many  of  the  decisions 
are  cases  of  first  impression,  and  as  yet 
stand  alone,  anything  like  a  logical  or 
scientific  arrangement  or  classification  is 
impossible,  and  this  annotation  must  in 
places,  at  least,  appear  fragmentary- and 
disconnected.  Effort  has  been  made,  how- 
ever, to  bring  together  the  decisions  upon 
the  corresponding  statutory  provisions,, 
pointing  out,  so  far  as  justified  by  the 
language  of  the  court,  the  similarities  or 
differences  in  the  statute  in  order  to 
show,  if  possible,  to  what  extent  the  de- 
cisions of  one  jurisdiction  support  or  are 
in  conflict  with  those  in  other  jurisdic- 
tions. 

While  it  is  not  proposed  to  analyze  the 
American  statutes  at  any  length,  a  few 
of  the  marked  characteristics  and  differ- 
ences should  be  noted  in  order  to  under- 
stand more  clearly  the  decisions.  These 
observations  will  be  general  in  character, 
and  will  not  touch  upon  the  individual 
peculiarities  of  the  particular  statute. 

In  regard  to  the  application  of  the 
statutes  generally,  they  may  be  divided 
into  two  groups, — elective  and  compul- 
sory. The  elective  statutes  give  the  op- 
tion to  the  employer  and  employee  (the 
employees  only  have  the  option  under 
the  Arizona  law)  to  come  under  the 
statute  or  to  retain  the  rights  and  ob- 
ligations under  the  common  law  or  ex- 
isting statutes.  The  compulsory  statutes, 
such  as  those  of  Washington,  New  York, 
California,  and  Ohio,41  do  not  afford  any 


*1  The   most   striking  difference   between- 
the  California  act  of  1911  and  the  later  act 


214 


WORKMEN'S  COMPENSATION. 


such  option,  but  take  the  place  of  the  ex- 
isting laws  as  to  all  employers  and 
employees  coming  within  the  terms  of  the 
act.  It  should  be  noted  that  some  of  the 
compulsory  statutes,  such  as  those  of 
New  York  and  Washington,  apply  only 
to  certain  designated  occupations  consid- 
ered extrahazardous  in  character.  Cer- 
tain occupations,  such  as  farm  labor  and 
domestic  service,  in  which  the  danger  of 
serious  personal  injury  is  very  small,  are 
specially  excepted  from  the  operation  of 
many  of  the  elective  statutes. 

Again,  in  respect  to  the  provisions  rel- 
ative to  payment  of  compensation,  the 
statutes  may  be  divided  into  two  classes, 
— direct  payment  and  insurance  statutes. 
The  direct  payment  statutes,  following 
the  English  act,  provide  for  the  payment 
of  the  compensation  by  the  employer  di- 
rectly to  the  employee ;  **  while  insurance 
statutes  require  the  employer  to  take  out 
insurance  either  with  an  insurance 
bureau  operated  by  the  state,  or  with  a 
private  company,  and  if  an  employee  is 
injured,  the  compensation  is  paid  by  the 
insurer.  Under  some  insurance  statutes, 
the  premium  to  be  paid  by  the  employer 
is  based  solely  upon  the  character  of  his 
business  and  the  size  of  his  pay  roll. .  In 
one  respect,  at  least,  these  latter  statutes 
tend  to  accomplish  one  of  the  great  pur-  j 
poses  of  all  of  the  acts,  namely,  the  re- 
moval of  friction  between  the  employer 
and  the  employee.  Theoretically,  at  least, 
it  is  immaterial  to  the  employer  from  a 
financial  standpoint,  whether  an  injured 
employee  receives  compensation  or  not. 
His  financial  obligations  are  terminated 
on  the  payment  of  his  premium,  and  he 
has  no  reason  to  object  to  the  payment 
of  compensation  which  is  presumed  to  aid 
his  employee  and  make  him  a  more  useful 
servant. 


Compensation  acts  differ  frovn  other 
acts,  such  as  the  employers'  liability 
acts,  fellow  servant  statutes,  etc.,  in  that 
the  recovery  of  compensation  is  not  pred- 
icated upon  the  fault  of  the  master,  ac- 
tual or  imputed,  but  solely  upon  loss  of 
wage-earning  ability.  An  employee  who 
suffers  a  loss  of  such  wage-earning  abil- 
ity by  accident  or  personal  injury  arising 
out  of  his  employment  is  entitled  to  com- 
pensation although  the  master  has  not 
been  negligent ;  and  even  if  the  workman 
has  himself  been  negligent,  if  such  neg- 
ligence on  his  part  does  not  amount  to 
wilful  or  intentional  misconduct.  Almost 
all  of  the  statutes,  particularly  the  op- 
tional acts,  contain  provisions  both  as  to 
the  employer's  liability  for  damages  and 
as  to  the  awarding  of  compensation  to 
the  injured  workman.  The  distinction 
between  compensation  statutes  and  the 
employers'  liability  acts  has  not  always 
been  preserved  in  the  official  titles  to  the 
acts,  and  some  of  them  have  properly  the 
joint  title  of  "employers'  liability  and 
workmen's  compensation"  act,  since  they 
contain  features  of  both  kinds.  The  con- 
fusion thus  arising  has  been  noted  by 
some  courts.43  In  this  note  the  term 
"compensation"  will  in  all  cases  be  used 
to  designate  the  statute  if  the  case  arises 
under  the  compensation  features  of  the 
act,  although  other  portions  of  the  act 
may  deal  with  employer's  liability  prop- 
erly so-called. 

As  has  been  stated  earlier  in  the  note, 
it  is  not  the  purpose  of  annotation  of  this 
character  to  enter  into  a  discussion  of 
the  sociological  and  ethical  grounds  ad- 
vanced in  support  of  these  acts.  A  few 
judicial  statements  of  the  purposes  of 
the  acts,  however,  may  be  of  interest  and 
will  be  found  in  the  note  below.44 


of  1913  is  that  the  compensation  provisions 
of  the  latter  statute  are  compulsory  on  all 
employees  and  employers  coming  within  its 
terms.  Western  Indemnity  Co.  v.  Pills- 
bury  (1915)  —  Cal.  — ,  161  Pac.  398. 

42  The  Connecticut  act  is  a  direct  settle- 
ment act  as  distinguished  from  an  insurance 
act.      Kennerson    v.    Thames    Towboat    Co. 
(1915)  89  Conn.  367,  post,  436,  94  Atl.  372. 

43  The   act   of  April   4th,   1911    (P.   L.   p. 
134),  should  be  designated  and  referred  to 
as  the  "workmen's  compensation  act;"  and 
the  act  of  April  13th,  1909   (P.  L.  p.  114), 
as  the  "employees'  liability  act."     Gregutis 
v.   Waclark   Wire   Works    (1914)    86   N.   J. 
L.   610,  92  Atl.   354,  affirming  —  N.  J.  L. 
— ,  91  Atl,  98 

44  in  Young  v.  Duncan   (1914)   218  Mass. 
346,  106  N.  E.  1,  in  speaking  of  the  purpose 
of  the  statute,  the  court  said:     "It  was  a 
humanitarian  measure,  enacted  in  response 
to  a  strong  public  sentiment  that  the  reme 
dies  afforded  by  actions  of  tort  at  common 
L.R.A.1916A. 


law  and  under  the  employers'  liability  act 
have  failed  to  accomplish  that  measure  of 
protection  against  injuries,  and  of  relief  in 
case  of  accident,  which  it  was  believed 
should  be  afforded  to  the  workman." 

In  McRoberts  v.  National  Zinc  Co. 
(1914)  93  Kan.  364,  144  Pac.  247,  the  court, 
in  speaking  of  the  purpose  of  the  act,  said: 
"In  the  enactment  of  the  compensation  law 
the  legislature  recognized  that  the  common- 
law  remedies  for  injuries  sustained  in  cer- 
tain hazardous  industries  were  inadequate, 
unscientific,  and  unjust,  and  therefore  a  sub- 
stitute was  provided  by  which  a  more  equi- 
table adjustment  of  such  loss  could  be  made 
tinder  a  system  which  was  intended  largely 
to  eliminate  controversies  and  litigation, 
and  place  the  burden  of  accidental  injuries 
incident  to  such  employments  upon  the  in- 
dustries themselves;  or  rather,  upon  the 
consumers  of  the  products  of  such  indus- 
tries." 


CONSTRUCTION  OF  STATUTES. 


215 


XXV.  Constitutionality      of      American 
statutes. 

The  constitutionality  of  the  American 
statutes  is  treated  in  annotation  on  page 
409,  post. 

XXVI.  Conflict  of  laws. 

As  to  the  conflict  of  laws  with  refer- 
ence to  compensation  statutes,  see  anno- 
tation, page  443,  post. 

XXVII.  Extraterritorial         effect         of 
American  statutes. 

As  to  the  extraterritorial  effect  of  the 
compensation  acts,  see  annotation,  page 
443,  post. 


XXVIII.  Limitation    of    application    of 
statutes  by  Federal  laws. 

As  to  the  limitation  of  the  application 
of  the  compensation  statutes  by  reason 
of  Federal  laws,  see  annotation,  page 
461,  post. 

XXIX.  Construction,   effect,   and  appli- 
cation  of  statutes  generally. 

a.  Strict  or  liberal  construction. 

Notwithstanding  the  compensation  acts 
are  in  derogation  of  the  common  law,  the 
courts  have  generally  held  that,  being 
highly  remedial,  they  should  be  broadly 
and  liberally  construed.45  A  contrary 
view  has  apparently  been  taken  by  the 


By  the  logic  of  the  workmen's  compensa- 
tion act,  persona]  injuries  to  employees  are 
a  natural  element  in  the  cost  of  production, 
and  are  necessarily  paid  by  the  consumers 
of  the  things  produced.  Marshall,  J.,  in 
Milwaukee  v.  Miller  (1913)  154  Wis.  652. 
ante,  1,  144  N.  W.  188,  Ann.  Cas.  1915B, 
847,  4  N.  C.  C.  A.  149. 

One  main  purpose  of  the  act  is  to  estab- 
lish between  the  employee  and  the  em- 
ployer, in  place  of  the  common-law  or 
statutory  method  of  redress  for  personal  in- 
jury based  upon  tort,  a  system  whereby 
compensation  for  all  personal  injuries  or 
death  of  the  employee  received  in  the  course 
of  and  arising  out  of  his  employment, 
whether  through  unavoidable  accident,  neg- 
ligence, or  otherwise  (except  through  his 
serious  and  wilful  misconduct),  shall  be 
determined  forthwith  by  a  public  board  and 
paid  by  the  insurer.  Gould's  Case  (1913> 
215  Mass.  480,  102  N.  E.  693,  Ann.  Cas. 
1914D,  372,  4  N.  C.  C.  A.  60. 

Proper  administration  of  the  workmen's 
compensation  act  requires  appreciation  of 
the  manifest  legislative  purposes  to  abolish 
the  common -law  system  regarding  injuries 
to  employees  as  unsuited  to  modern  con- 
ditions and  conceptions  of  moral  obliga- 
tions, and  erect  in  place  thereof  one  based 
on  the  highest  present  conception  of  man's 
humanity  to  man,  and  obligations  to  mem- 
bers of  the  employee  class, — one  recognizing 
every  personal  loss  to  an  employee,  not 
self-inflicted,  as  necessarily  entering  into 
the  cost  of  production,  and  required  to  be 
liquidated  in  the  step  ending  with  consump- 
tion. Marshall,  J.,  in  Milwaukee  v.  Miller 
(Wis.)  supra. 

Elective  workmen's  compensation  acts, 
such  as  the  Connecticut  act,  are  founded 
upon  the  theory  of  a  contract  existing  be- 
tween the  workman  and  the  employer,  an 
implied  consideration  of  which  is  provision 
for  compensation  for  injury  to  the  work- 
man, arising  in  the  course  of  his  employ- 
ment, not  through  his  intentional  or  wilful 
misconduct.  Hotel  Bond  Co.'s  Appeal 
(1915)  89  Conn.  143,  93  Atl.  245. 

In  speaking  of  the  nature  of  the  pay- 
ment to  be  made  by  the  employer  to  an 
injured  employee,  Haight,  District  Judge, 
L.R.A.1916A. 


in  Wood  v.  Camden  Iron  Works  (1915)  221 
Fed.  1010,  said:  "I  think  that  the  logical 
result  of  such  construction  is  that  the  con- 
tract of  employment  provided  for  in  the 
statute  is  to  pay  in  consideration  of  work 
to  be  done,  so  much  during  the  time  the 
employee  is  working,  and  if  he  shall  be  in- 
jured, his  wages  shall  be  considered  to  have 
been  increased  in  the  proportions  allowed 
by  the  statute  for  the  time  therein  pro- 
vided, the  excess  to  be  payable  at  certain 
designated  periods  in  the  future." 

«  Hotel  Bond  Co.'s  Appeal  (1915)  89 
Conn.  143,  93  Atl.  245;  Kennerson  v. 
Thames  Towboat  Co.  (1915)  89  Conn.  367, 
post,  436,  94  Atl.  372;  Coakley's  Case,  216 
Mass.  71,  102  N.  E.  930,  Ann.  Cas.  1915A, 
867,  4  N.  C.  C.  A.  508;  Sullivan's  Case 
(1914)  218  Mass.  141,  post,  378,  105  N.  E. 
463,  5  N.  C.  C.  A.  735;  Young  v.  Duncan 
(1914)  218  Mass.  346,  106  N.  E.  1;  Meley's 
Case,  219  Mass.  136,  106  N.  E.  559;  State 
ex  rel.  Virginia  &  R.  L.  Co.  v.  District 
Ct.  (1914)  128  Minn.  43,  150  N.  W.  211,  7 
N.  C.  C.  A.  1076;  Re  Petrie  (1915)  215  N. 
Y.  335,  109  N.  E.  549;  Winfield  v.  New 
York  C.  &  H.  R.  R.  Co.  (1915)  168  App. 
Div.  351,  153  N.  Y.  Supp.  499;  McQueeney 
v.  Sutphen,  167  App.  Div.  528,  153  N.  Y. 
Supp.  554;  Sadowski  v.  Thomas  Furnace 
Co.  (1914)  157  Wis.  443,  146  N.  W.  770. 

The  provisions  of  the  Minnesota  act 
should  be  given  a  very  liberal  construction. 
State  ex  rel.  Splady  v.  District  Ct.  (1915) 
128  Minn.  338,  151  N.  W.  123;  State  ex  rel. 
Northfield  v.  District  Ct.  (1915)  —  Minn. 
— ,  155  N.  W.  103. 

The  Wisconsin  act  should  be  liberally 
construed  in  favor  of  life,  health,  and  limb. 
Tallman  v.  Chippewa  Sugar  Co.  (1913)  155 
Wis.  36,  143  N.  W.  1054. 

The  Washington  act,  although  in  deroga- 
tion of  the  common  law,  should  be  liberally 
construed,  having  regard  to  the  former  law 
and  the  defects  or  evils  sought  to  be  cured 
and  the  remedy  provided.  Peet  v.  Mills, 
76  Wash.  437,  post,  358,  136  Pac.  685,  Ann. 
Cas.  1915D,  154,  4  N.  C.  C.  A.  786. 

The  Washington  act,  because  of  its 
humaneness  and  declaration  of  a  new  pub- 
lic policy,  should  be  interpreted  liberally 
and  broadly  in  harmony  with  its  purpose 


216 


WORKMEN'S  COMPENSATION. 


Michigan  court.46  And  probably  none  of 
the  courts  would  give  the  act  such  a 
broad  construction  as  to  include  em- 
ployees or  accidents  not  within  its  pro- 
visions either  by  express  language  of 
the  act,  or  by  a  necessary  implication 
therefrom,47  although  the  Washington 
court  has  said  that  the  act  should  be  con- 
strued to  include  those  within  the  reason, 
although  outside  the  letter,  of  the  stat- 
ute.48 

6.  Retroactive  effect  of  statutes. 

Several  of  the  statutes  have  been  held 
not  to  apply  to  injuries  occurring  before 
their  passage.  Thus,  the  Arizona  statute 
(Special  Laws  [Ariz.]  1912,  p.  23,  Special 
Session)  has  no  application  to  injury  oc- 
curring before  its  passage.49  And  the 
provision  in  the  New  Jersey  act  of  1913 
that  claims  for  personal  injury  shall  be 


barred  unless  agreed  upon  or  sought  to 
be  adjudged  within  one  year  is  not  retro- 
active so  as  to  apply  to  the  case  of  an 
accident  which  occurred  before  the  act 
of  1913,  containing  the  limitation,  was 
passed.50 

The  claim  to  compensation  by  a  de- 
pendent of  a  deceased  workman  is  gov- 
erned by  the  act  which  was  in  effect  at 
the  time  of  his  death,  and  not  by  the  law 
in  effect  at  the  time  of  his  injurj'.61 

c.  Occupations  to  which  acts  are  appli- 
cable. 

Not  all  of  the  American  statutes  are 
applicable  to  all  classes  of  employers,  nor 
to  all  classes  of  employment.  Some  of 
them  do  not  apply  unless  the  employer 
employs  a  certain  number  or  more  of  em- 
ployees; while  other  statutes  apply  only 
to  certain  specifically  designated  employ- 


to  protect  injured  workmen  and  their  de- 
pendents, independent  of  question  of  fault. 
Wendt  v.  Industrial  Ins.  Commission  (1914) 
80  Wash.  Ill,  141  Pac.  311,  5  N.  C.  C.  A. 
790. 

In  construing  a  statute  which  is  referable 
to  the  police  power,  and  was  originated  to 
promote  the  common  welfare,  supposed  to 
be  seriously  jeopardized  by  the  infirmities 
of  an  existing  system,  the  conditions  giving 
rise  to  the  law,  the  faults 'to  be  remedied, 
the  aspirations  evidently  intended  to  be 
embodied  in  the  enactment,  and  the  effect 
and  consequences  as  regards  responding  to 
the  prevailing  conception  of  the  necessities 
of  public  welfare,  should  be  considered,  and 
the  enactment  given  such  broad  and  liberal 
meaning  as  can  be  fairly  read  therefrom, 
so  far  as  required  to  effectively  eradicate 
the  mischief  it  was  intended  to  obviate. 
Marshall,  J.,  in  Milwaukee  v.  Miller  (1913) 
154  Wis.  652,  ante,  1,  144  N.  W.  188,  Ann. 
Cas.  1915B,  847,  4  N.  C.  C.  A.  149. 

46  The    statute,    being    in    derogation    of 
the   common    law,    should    be    strictly   con- 
strued   although    it    is    remedial,    and    pro- 
vides a  remedy  against  a  person  who  other- 
wise  would   not   be   liable.     Andrejwski   v. 
Wolverine   Coal   Co.   (1914)    182  Mich.  298, 
148  N.  W.  684,  6  N.  C.  C.  A.  807. 

47  The  Washington  act,  being  in  deroga- 
tion   of    the   common    law,    cannot    be   con- 
strued so  as  to  include  those  who  do  not, 
by    words    or    necessary    implication,    come 
within    its    terms.     Hillestad    v.    Industrial 
Ins.  Commission    (1914)   80  Wash.  426,  141 
Pac.  913,  6  N.  C.  C.  A.  763. 

The  statute   is  highly  remedial   in   char- 
acter,   and    the    court    ought,    therefore,   to 
guard   against   a   narrow   construction,   and 
should  not  exclude  a  servant  from  the  bene-  ! 
fits  thereof  unless  constrained  by  unambigu-  j 
ous  language,  or  the  clear  intent  as  gathered 
from  the  entire  act.     State  ex  rel.  Duluth  I 
Brewing  &  Malting  Co.  v.  District  Ct.  (1915)  I 
129  Minn.  176,  151  N.  W.  912. 

"While  the  statute  is  of  a  remedial  char- 
L.R.A.1916A 


acter,  and  is  to  have  a  liberal  construction, 
no  doubt,  for  the  purposes  for  which  it  is 
designed,  it  is  not  to  be  extended  by  im- 
plication to  accidents  not  clearly  within 
the  language  of  the  act."  De  Voe  v.  New 
York  State  R.  Co.  (1915)  169  App.  Div. 
472,  155  N.  Y.  Supp.  12. 

48  "The  act  should  be  liberally  interpreted 
to  the  end  that  the  purpose  of  the  legisla- 
ture   in   suppressing   the    mischief   and   ad- 
vancing the   remedy   to   be   promoted,  even 
to  the  inclusion  of  cases  within  the  reason, 
although  outside  the  letter,  of  the  statute; 
and  that   every  hazardous   industry  within 
the    purview    of    the    act    should    bear    the 
burden   arising   out   of   injuries   to   its   em- 
ployees, regardless  of  the  cause  of  the  in- 
jury."    Zappala  v.  Industrial  Ins.  Commis- 
sion (1914)  82  Wash.  314,  post,  295,  144  Pac. 
54. 

49  Arizona  &  N.  M.  R.  Co.  v.  Clark  (1913) 
125  C.  C.  A.  305,  207  Fed.  817   (affirmed  on 
appeal  from  decision  on  other  points  in  235 
II.  S.  669,  59  L.  ed.  415,  L.R.A.1915C,  834, 
35  Sup.  Ct.  Rep.  210). 

50  Birmingham  v.  Lehigh   &  W.  Coal  Co. 
(1915)  —  N.  J.  L.  — ,  95  Atl.  242. 

The  provisions  of  the  act  of  1913,  requir- 
ing all  claims  of  compensation  to  be  filed 
within  one  year  after  the  accident,  does  not 
apply  to  a  claim  for  compensation  arising 
under  the  act  of  1911.  Baur  v.  Court  of 
Common  Pleas  (1915)  --  N.  J.  L.  — ,  95 
Atl.  627. 

51  In  State  ex  rel.  Carlson  v.  District  Ct. 
(1915)    --   Minn.   — ,    154   N.   W.   661,   the 
employee    was    injured   on   June   30th,   and 
died    from    the    effects    of    the    injury    at 
about   1:30  A.   M.  on   the   morning  of  July 
1st.     The  court,  in  holding  that  the  com- 
pensation recoverable  was  governed  by  the 
law  which  went  into  effect  July  1st,  said: 
"The  claim   of  the  plaintiff  for  compensa- 
tion does  not  arise  from  the  injury  to  her 
husband,  but  is  a  new  and  distinct  right  of 
action  created  by  his  death." 


OCCUPATIONS  TO  WHICH  APPLICABLE. 


217 


ments  which  are  of  an  extrahazardous 
nature. 

Part  B  of  the  Connecticut  act  applies 
to  all  employers,  whether  employing  five 
or  more  or  less  than  five  employees,  and 
is  not  limited  by  the  provisions  in  part 
A,  dealing  with  employers'  liability, 
which  does  not  abolish  the  common-law 
defense  in  case  of  injury  by  employees  of 
any  employer  having  regularly  less  than 
rive  employees.58 

The  New  Hampshire  statute  is  elective 
and  applies  to  five  different  occupations 
considered  apparently  by  the  legislature 
as  extrahazardous.  These  occupations 
are,  first,  the  operation  of  steam  or  elec- 
tric railroads;  second,  work  in  any  shop, 
mill,  or  factory  in  which  there  is  machin- 
ery propelled  or  operated  by  steam,  or 
other  mechanical  power,  in  which  five  or 
more  persons  are  engaged ;  third,  the  con- 
struction, operation,  alteration,  or  re- 
pairs of  wires,  cables,  etc.,  charged  with 
electric  current;  fourth,  work  necessitat- 
ing dangerous  proximity  to  explosives  or 
to  any  steam  boilers;  fifth,  in  or  about 
any  quarry,  mine,  or  foundry.  The  word 
"mill,"  as  used  in  $  1  of  the  New  Hamp- 
shire act,  includes  not  only  the  building 
in  which  the  defendants'  business  is  car- 
ried on,  but  their  dam,  flume,  and  the 
ways  they  provide  for  the  use  of  their 
employees.  Where  it  clearly  appears 
from  the  evidence  that  there  were  more  I 
than  fifty  employees  in  the  mill,  and  at 
least  twenty-five  employees  in  the  room 
in  which  the  claimant  was  at  work,  it  is 
not  error  for  the  court  to  instruct  the 
jury  that  the  case  was  within  the  com- 
pensation act.54 

The  maintenance  of  water  mains  in 
connection  with  a  waterworks  plant  is 
the  "maintaining  of  a  structure"  within 
the  meaning  of  the  Illinois  act.54a 


The  New  York  and  Washington  stat- 
utes are  both  compulsory  in  character, 
and  apply  only  to  the  so-called  extra- 
hazardous  employments  which  are  ex- 
pressly designated  in  the  statutes. 

It  has  been  held  that  the  express  men- 
tion of  the  occupations  embraced  in  the 
several  groups  of  hazardous  employ- 
ments within  the  New  York  act  neces- 
sarily excludes  employment  not  there 
mentioned;  consequently,  as  the  work  of 
harvesting  ice  is  not  mentioned  in  any 
group,  an  employee  engaged  in  that  work 
is  not  within  the  provisions  of  the  act.56 
Applying  the  same  principle,  it  has  been 
held  that  if  the  schedules  do  not  cover 
the  injury  suffered  by  an  employee,  such 
as  disfigurement  only,  he  does  not  fall 
within  the  purview  of  the  act,  and  is 
entitled  to  maintain  an  action  under  the 
laws  in  force  at  the  time  the  compensa- 
tion act  was  passed.56  The  express  pro- 
visions for  injuries  received  in  long-shore 
work  in  one  section  of  the  New  York  act 
exclude  such  injuries  from  the  provisions 
of  another  section,  dealing  with  injuries 
received  in  the  operation  of  vessels  other 
than  those  of  other  states  or  countries, 
used  in  interstate  or  foreign  commerce.57 

So  far  as  railroad  employees  are  con- 
cerned, the  New  York  statute  applies 
only  while  the  employee  is  engaged  in 
"the  operation,  including  construction 
and  repair,"  of  the  railroad;  consequent- 
ly a  motorman  who  had  closed  his  day's 
work,  and  had  signed  his  name  to  the 
register  denoting  that  fact,  and  while 
going  to  have  his  watch  tested,  bad 
reached  a  point  in  the  public  highway 
where  he  was  run  down  by  an  automobile 
over  which  the  employer  had  no  control, 
is  not  within  the  protection  of  the  act.58 

An  employee  of  a  wholesale  grocery 
which  maintains  a  storage  warehouse  for 


52Bayon  v.  Beckley  (1915)  89  Conn.  154, 
93  Atl.  139,  8  N.  C.  C.  A.  588. 

53  Liability    under    the    New    Hampshire 
act,  which   provides   for   injury   received   in 
work   in   any   shop,   mill,   factory,   or  other 
place  in  connection  with  or  in  proximity  to. 
and    machinery    propelled    or    operated    by 
steam   or   other   mechanical    power,    is    not 
limited  to  injuries  received  in  proximity  to 
the  machinery,  but  will  include  injuries  by 
falling  from  the  milldam,  where  the  provi- 
sion in  respect  to  explosives  limits  the  lia- 
bility    to     injuries     caused     by     explosion. 
Boody  v.  K.  &  C.  Mfg.  Co.  (1914)   77  N.  H. 
208,  ante,  10,  90  Atl.  860,  Ann.  Cas.  1914D, 
1280. 

54  Wheeler     v.     Contoocook     Mills     Corp. 
(1915)   77  N.  H.  551,  94  Atl.  265. 

54a  Brown  v.  Decatur  (1914)  188  111.  App. 
147. 

55  Aylesworth     v.     Phoenix     Cheese     Co. 
(1915)  —  App.  Div.  — ,  155  N.  Y.  Supp.  916. 

56  The  New  York  statute  does  not  cover 
L.R.A.1916A. 


injuries  resulting  in  the  amputation  of  a 
portion  of  the  workman's  ear.  Shinnick  v. 
Clover  Farms  Co.  (1915)  169  App.  Div.  236. 
154  N.  Y.  Supp.  423. 

57  Jensen  v.  Southern   P.  Co.    (1915)    215 
I  N.  Y.  514,  post,  34,  109  N.  E.  600. 

58  De  Voe  v.  New  York  State  R.  Co.  (1915) 
169  App.  Div.  472,  155  N.  Y.  Supp.  12.     The 
court   said:      ''It   is   the   fact   of   being  en- 
gaged in  the  hazardous  employment  which 
gives   the   right   to  compensation,   and   not 
the  fact  that  the  employer  is  'carrying  on  or 
conducting  the  same,'  and  that  the  employee 
is  injured  while  performing  some  incidental 
duty  in  connection  with  such  employment." 
Kellogg,   J.,   concurring   in   the   result,   said 
that   if  the   prevailing  opinion   meant   that 
there   could   be   no   liability  unless   the   de- 
ceased met  his  death  while  actually  operat- 
ing his  car  as   a   motorman,  he   could   not 
agree  with  it;   that  he  thought  that  while 
the   employee   was   performing   any   service 
for  the  master  connected  with  and  growing 


218 


WORKMEN'S  COMPENSATION. 


its  goods  cannot  recover  compensation 
for  injuries  received  therein,  since  ware- 
housing, within  the  meaning  of  the  stat- 
ute, is  the  carrying  on  the  business  of 
warehousing  for  pecuniary  gain.59  Grind- 
ing meat  in  an  electric  chopper  in  a  meat 
market  is  a  hazardous  employment  with- 
in §  2,  group  30,  which  relates  to  "man- 
ufacture or  preparation  of  meat  for  meat 
products ;  "  60  but  a  butcher  or  assistant 
to  the  chef  at  a  hotel,  whose  duty  it  was 
to  distribute  meat  to  the  cooks  as  or- 
dered, is  not  embraced  within  groups  30 
and  33  of  the  New  York  act,  which  re- 
late to  "manufacture  or  preparation  of 
meat  or  meat  products"  and  "canning  or 
preparation  of  fruit,  vegetables,  meat,  or 
foodstuffs."  61  The  operation  of  a  truck 
which  is  made  a  hazardous  employment 
by  section  2,  group  41  of  the  New  York 
act  is  not  restricted  to  the  actual  process 
of  driving  the  truck.62  Cutting  up  and 
beveling  glass  or  making  looking  glasses 
of  it  may  be  considered  a  manufacture  of 
glass  products  within  the  meaning  of  § 
2,  of  group  20  of  the  New  York  act.63 
A  motor  and  shipping  clerk  employed  by 
a  glass-selling  agency,  who  was  required 
from  time  to  time  to  operate  the  eleva- 
tor, there  being  no  regular  elevator  man, 
is  engaged  in  a  hazardous  occupation 
within  the  meaning  of  the  New  York 
act.64  A  wholesale  druggist  may  be  as- 


sumed to  compound  and  make  different 
substances  together  into  medicine  and 
thus  be  engaged  in  the  "manufacture  of 
drugs  and  chemicals"  within  the  meaning 
of  the  New  York  act.64a  No  compensa- 
tion is  recoverable  under  the  New  York 
act  for  injury  to  a  janitor  who  casually 
and  incidentally  did  plumbing,  repair, 
and  heating  work  and  who  was  injured 
while  ascending  a  ladder  to  the  roof 
merely  for  the  purpose  of  hanging  up  a 
flag.64b  A  macaroni  manufacturer  who 
engages  a  carpenter  by  the  hour  to  do 
some  work  upon  his  premises  in  the  way 
of  improvements  is  not  engaged  in  the 
hazardous  employment  of  structural  car- 
pentry or  repair  of  buildings  as  contem- 
plated by  group  42  of  the  New  York 
act.64c 

Under  the  Washington  statute,  an  em- 
ployer's liability  is  not  to  be  determined 
by  an  answer  to  the  question  whether  he 
is  principally  engaged  in  an  extrahazard- 
ous  business  or  in  conducting  extrahaz- 
ardous  work,  but  if  he  conducts  any  de- 
partment of  his  business,  whether  large 
or  small,  as  an  extrahazardous  business 
within  the  meaning  and  denned  terms  of 
the  act,  his  workmen  would  come  with- 
in the  class  designated  by  the  act.65  And 
a  workman  is  within  the  compensation 
act,  if,  at  the  time  he  was  injured,  he 
was  properly  engaged  in  an  extrahazard- 


out  of  his  employment,  and  a  part  of  his 
duties  as  such  employee,  it  was  immaterial 
whether  he  was  actually  operating  his 
motor  at  the  time.  But  having  his  watch 
tested  was  not  a  part  of  his  service  to  the 
master. 

59  Mihm  v.  Hussey  (1915)  —  App.  Div. 
— ,  155  N.  Y.  Supp.  860. 

60Kohler  v.  Frohmann  (1915)  167  App. 
Div.  533,  153  N.  Y.  Supp.  559. 

61  De  la  Gardelle  v.  Hampton  Co.   (1915) 
167   App.   Div.   617,   153   N.   Y.   Supp.    162. 
The  court  said:     "Groups  30  and  33  of  §  2 
of   the   statute   under   consideration,   which 
enumerates  and  defines  hazardous  employ- 
ments, cannot,  in  my  judgment,  be  regarded 
as  covering  any   employment  consisting  of 
the  preparation   of  meat   or   foodstuffs   for 
cooking  purposes  in  the  ordinary  course  of 
household   duties,   domestic   service,   or   the 
conduct  of  hotels  or  restaurants   in  which 
meats    or    foods    are    prepared    and    cooked 
for  eating  on  the  premises." 

62  A  teamster  who  had  operated  a  truck 
during  the  day  and  was  putting  his  horse 
in  the  stall  at  night  when  it  jumped  and  j 
squeezed  him  against  the  side  of  the  stall 
causing   his   death,   is   injured  while   "oper- 
ating a  truck"  within  the  meaning  of  the 
act.     Smith  v.  Price   (1915)    168  App.  Div. 
421,  153  N.  Y.  Supp.  221. 

A  helper  to  the  driver  of  a  truck  is  with- 
in the  protection  of  the  statute  where  the 
employers,  a  wholesale  grocery  company, 
found  it  necessary  to  employ  two  men  to 
L.R.A.19164. 


load  and  unload  the  truck  and  properly 
to  guard  and  look  after  the  load  while  it 
was  being  driven  through  the  streets.  Hen- 
dricks  v.  Seeman  (1915)  —  App.  Div.  — , 
155  N.  Y.  Supp.  638. 

63McQueeney  v.  Sutphen  (1915)  167  App. 
Div.  528,  153  N.  Y.  Supp.  554. 

64  Wilson    v.    Dorflinger    (1915)    --   App. 
Div.  — ,  155  N.  Y.  Supp.  857;   followed  by 
Chappelle  v.   412   Broadway  Co.    (1915)    - 
App.  Div.  — ,  155  N.  Y.  Supp.  858;  Cremin 
v.  Mordecai   (1915)  —  App.  Div.  — ,  155  N. 
Y.   Supp.   859;    Mclntyre   v.   Hilliard   Hotel 
Co.  (1915)  —  App.  Div.  — ,  155  N.  Y.  Supp. 
859;    Sheridan    v.    P.    J.    Grol    Constr.    Co. 
(1915)  —  App.  Div.  — ,  155  N.  Y.  Supp.  859. 

64»A  general  utility  man  engaged  in  an 
establishment  where  drugs  and  chemicals 
are  manufactured  must  be  presumed  to  par- 
ticipate more  or  less  in  the  work  of  the 
establishment.  Larsen  v.  Paine  Drug  Co. 
(1915)  --  App.  Div.  — ,  155  N.  Y.  Supp. 
759  (workman  was  engaged  at  the  time  of 
the  accident  in  building  a  shelf  but  in  order 
to  do  so  had  to  handle  drugs  and  chemicals 
in  the  building). 

64b  Gleissner  v.  Gross  (1915)  —  App.  Div. 
— ,  155  N.  Y.  Supp.  946. 

64c  Bargey  v.  Massaro  Macaroni  Co.  (1915) 
-  App.  Div.  — ,  155  N.  Y.  Supp.  1076. 

65  A   company   engaged   in   the   managing 
and  superintendence  of  business  properties 
for  the  owners,  a  department  of  whose  busi- 
ness is  the  repairing  of  buildings,  in  which 
department  it  employs  carpenters,  painters, 


ELECTION  UNDER  OPTIONAL  ACT. 


219 


ous  employment,  although  he  was  not 
regularly  employed  in  such  employment.66 
A  workman  for  a  city  contractor,  en- 
gaged in  constructing  a  manhole  from 
the  surface  of  the  street  to  the  water 
pipes  of  the  city  water  system,  is  not 
engaged  in  an  extrahazardous  employ- 
ment within  the  Washington  statute,  so 
as  to  prevent  his  bringing  an  action  for 
damages  against  a  third  person  through 
whose  negligence  he  was  injured.67  An 
employee  engaged  in  operating  an  eleva- 
tor or  lift  in  a  mercantile  establishment 
is  not  engaged  in  extrahazardous  employ- 
ment within  the  meaning  of  the  Wash- 
ington statute.68 

XXX.  Election  to  come  in  under  option- 
al act. 

As  to  alternative  remedies  furnished 
workman  or  dependent  under  the  English 
act,  see  ante,  72. 


As  to  recovery  of  compensation  under 
the  English  act  where  action  for  dam- 
ages has  failed,  see  ante,  81. 

In  order  to  stand  the  test  of  constitu- 
tionality, most  of  the  statutes  make  it 
optional  with  both  the  employer  and 
employee  to  accept  or  reject  the  compen- 
sation features  of  the  act.  If  either 
party  rejects  them,  they  are  not  appli- 
cable.69 But  provisions  amounting  almost 
to  coercion  are  made  in  order  to  induce 
the  parties  to  subscribe  to  the  act.  The 
ordinary  form  is  to  take  away  the  de- 
fenses of  assumption  of  risk,  contribu- 
tory negligence,  and  fellow  service  from 
the  employer  who  fails  to  subscribe  to 
the  statute,  but  to  preserve  them  to  the 
employer  who  subscribes  as  against  the 
employee  who  does  not.70 

Under  the  Michigan  act,  where  the  de- 
j  fendant  does  not  elect  to  pay  compensa- 
1  tion  in  the  manner  and  to  the  extent 


and  men  in  electrical  work,  is  within  the 
statute  and  is  liable  to  the  state  for  pre- 
miums due  to  the  Industrial  Insurance  Com- 
mission. State  v.  Business  Property  Secur- 
ity Co.  (1915)  --  Wash.  — ,  152  Pac.  334. 

A  carpenter  employed  by  a  department 
store,  who  was  killed  by  an  electric  shock 
while  engaged  in  a  repair  shop  maintained 
by  the  company,  which  shop  was  operated 
primarily  for  the  repair  of  its  delivery 
wagons  and  automobiles,  and  contained  a 
carpenter's  bench  and  a  power  lathe,  and 
other  machinery  operated  by  electric  cur- 
rent, was  engaged  in  an  extrahazardous 
employment  within  the  meaning  of  the 
Washington  act.  Wendt  v.  Industrial  Ins. 
Commission  (1914)  80  Wash.  Ill,  141  Pac. 
311,  5  N.  C.  C.  A.  790. 

66  An  employee,  although  not  regularly 
employed  in  hazardous  employment  under 
the  Washington  statute  is  within  the  stat- 
ute and  cannot  recover  in  an  action  for 
damages  against  the  employer  not  in  de- 
fault in  his  payments  to  the  accident  fund, 
where,  at  the  time  of  the  injury,  the  em- 
ployee was  properly  and  lawfully  engaged 
in  extrahazardous  employment  in  obedience 
to  commands  and  orders  issued  to  him  by 
one  who  was  in  lawful  authority  over  him, 
whose  orders  it  was  his  duty  to  obey.  Re- 
plogle  v.  Seattle  School  Dist.  (1915)  84 
Wash.  581,  147  Pac.  196  (truck  driver 
temporarily  engaged  in  installing  motors). 

67Puget  Sound  Traction,  Light  &  P.  Co. 
v.  Schleif  (1915)  135  C.  C.  A.  616,  220  Fed. 
48. 

68  Guerrieri    v.    Industrial    Ins.    Commis- 
sion (1915)  84  Wash.  266,  146  Pac.  608,  8  N. 
C.  C.  A.  440. 

69  There   is   no   provision   in    the    Illinois 
workman's  compensation  act  of  1911  which 
confers    upon    the    employee    the    right    to 
elect  to  be  governed  by  the  act  in  his  rela- 
tion to  an  employer  who  has  rejected  the 
act.      Dietz   v.    Big   Muddy   Coal    &    I.   Co. 
(1914)   263  111.  480,  105  N.  E.  289,  5  N.  C. 
C.  A.  419;  Price  v.  Clover  Leaf  Coal  Min. 
Co.  (1914)  188  111.  App.  27. 
L.R.A.1916A. 


The  compensation  features  of  the  Wis- 
consin act  are  not  applicable  where  the 
workman  has  not  complied  with  the  terms 
of  the  statute.  Salus  v.  Great  Northern  R. 
Co.  (1914)  157  Wis.  546,  147  N.  W.  1070. 

70  Crooks  v.  Tazewell  Coal  Co.  (1914)  263 
111.  343,  105  N.  E.  132,  Ann.  Cas.  1915C, 
304,  5  N.  C.  C.  A.  410;  Dooley  v.  Sullivan 
(1914)  218  Mass.  597,  106  N.  E.  604;  Pope 
v.  Hey  wood  Bros.  &  W.  Co.  (1915)  221  Mass. 
143,  108  N.  E.  1059;  Crucible  Steel  Forge 
Co.  v.  Moir  (1915)  135  C.  C.  A.  49,  219  Fed. 
151,  8  N.  C.  C.  A.  1006;  Karny  v.  North- 
western Malleable  Iron  Co.  (1915)  160  Wis. 
316,  151  N.  W.  786;  Cavanaugh  v.  Morton 
Salt  Co.  (1913)  152  Wis.  375,  140  N.  W.  53. 

In  Puza  v.  C.  Hennecke  Co.  (1914)  158 
Wis.  482,  149  N.  W.  223,  the  court  said 
that  the  statute  abrogating  the  rule  of  as- 
sumption of  risk  and  the  fellow  servant  rule 
was  intended  to  make  it  uncomfortable  for 
employers  who  fail  to  come  in  under  the 
compensation  act. 

In  Karny  v.  Northwestern  Malleable  Iron 
Co.  (1915)  160  Wis.  316,  151  N.  W.  786, 
the  court  said  that  the  policy  of  the  law 
is  to  preserve  the  defenses  of  assumption  of 
risk,  negligence  of  a  fellow  servant,  and 
contributory  negligence,  to  an  employer  who 
shall  elect  to  come  under  the  act,  respecting 
an  employee  who  does  not,  as  a  constitu- 
tional method  of  coercing  both  parties  to 
accept  the  benefits  and  burdens  of  the  new 
system  in  place  of  those  of  the  old. 

In  Boody  v.  K.  &  C.  Mfg.  Co.  (1914)  77 
N.  H.  208,  90  Atl.  859,  Ann.  Cas.  1914D, 
1280,  5  N.  C.  C.  A.  840,  Young,  J.,  said:  "By 
the  enactment  of  chapter  163,  Laws  of  1911, 
the  legislature  intended  to  change  the  com- 
mon law  so  that  one  who  is  injured  by  acci- 
dent while  engaged  in  work  in  which  the 
risks,  are  great  and  difficult  to  avoid  may 
be  compensated,  in  part,  at  least,  for  the 
loss  thereby  sustained,  if  the  accident  is 
one  arising  out  of  and  in  the  course  of  the 
employment,  regardless  of  the  cause  of  his 
injury  (§2).  It  seems  to  have  been  under- 
stood, however,  that  this  change  could  not 


220 


WORKMEN'S  COMPENSATION. 


provided  by  the  act,  the  defenses  of  co- 
service  and  assumption  of  risk  are  not 
available,  nor  is  the  defense  of  contribu- 
tory negligence,  unless  such  negligence 
on  the  part  of  the  servants  should  appear 
to  be  wilful.71  Under  some  acts  the  de- 
fense of  contributory  negligence  is  not 
entirely  abrogated,  but  the  doctrine  of 
comparative  negligence  is  established.72 

Under  the  Illinois  act  it  has  been  held 
that  the  defenses  of  assumption  of  risk, 
contributory  negligence,  and  fellow  serv- 
ice are  cut  off  from  an  employer  who  re- 
fuses to  come  in  under  the  act,  regardless 
of  the  status  of  the  employee.73 

The  Massachusetts  court  has  held  that 
it  is  "voluntary"  assumption  of  risk,  and 
not  "contractual"  assumption  of  risk, 
which  the  statute  abrogates  in  the  case 
of  an  employer  who  is  not  a  subscriber 
under  the  act.  This  decision  means  noth- 
ing more,  however,  than  that  an  em- 
ployee, in  order  to  recover  from  an  em- 
ployer who  had  not  subscribed  to  the 
act,  must  show  that  such  employer  was 
negligent  and  that  sueh  negligence 
caused  the  injury;  since,  under  the  rule 


of  the  Massachusetts  court,  "contractual 
assumption  of  risk"  includes  only  such 
risks  as  are  necessarily  incident  to  the 
employment,  and  does  not  include  those 
risks  which  are  created  by  the  negligence 
of  the  master.74  To  the  same  effect  is 
the  decision  of  the  Iowa  court  which 
holds  that  the  statute  of  that  state 
does  not,  by  taking  away  the  affirma- 
tive defense  of  assumption  of  risk  ren- 
der an  employer  who  elects  not  to  come 
in  under  the  act  liable  in  damages  if  he 
is  wholly  free  from  negligence.74* 

An  employer  who  has  elected  to  come 
under  the  act  does  not,  by  objecting  to  an 
employee  not  so  electing,  having  the  ben- 
efit of  the  act,  waive  the  statutory  pres- 
ervation of  the  common-law  defenses.75 
An  employee  cannot,  under  the  Connecti- 
cut act,  be  deprived  of  the  benefits  of  the 
compensation  features  of  the  act  which 
both  parties  have  accepted,  by  reason  of 
the  failure  of  employer  to  fulfil  the  re- 
quirements of  the  statute.76 

The  Illinois  compensation  act  of  1911 
is  not  an  exercise  of  the  police  power  be- 
cause it  deprives  an  employer,  under  the 


be  made  without  the  assent  of  all  those 
affected  by  it.  It  was  necessary,  therefore, 
from  -that  view  point,  to  secure  the  assent 
of  those  affected  by  the  act  as  well  as  to 
provide  for  compensation  to  the  injured.  It 
is  the  office  of  §  1  to  define  those  who  come 
within  the  operation  of  the  act,  and  of 
§§  2,  3,  and  4  to  induce  them  to  accept  its 
provisions.  The  means  devised  to  induce 
such  acceptance  by  employers  were:  (1)  To 
provide  that  if  an  employee  is  injured  by 
accident  arising  out  of  and  in  the  course 
of  the  employment,  caused  in  whole  or  in 
part  by  the  negligence  of  his  employers  or 
of  their  servants  or  agents,  the  employers 
shall  be  liable  to  the  employee  for  all  the 
loss  he  sustains,  and  he  'shall  not  be  held 
to  have  assumed  the  risk'  of  his  in- 
jury, but  there  shall  'be  no  liability 
under  this  section  for  any  injury  to  which  it 
shall  be  made  to  appear  by  a  preponderance 
of  evidence  that  the  negligence  of  the  plain- 
tiff contributed'  (§  2);  and  then  (2)  to  re- 
lieve employers  who  accept  the  act  in  ac- 
cordance with  the  provisions  of  §  3  from 
the  burdens  imposed  on  them  in  §  2.  In 
other  words,  the  means  the  legislature  de- 
vised to  induce  employers  to  accept  the 
provisions  of  the  act  was  to  take  from  those 
who  do  not  accept  it  about  the  only  real 
defense  to  an  action  by  a  servant  which  is 
open  to  his  employer  at  common  law." 

7iLydman  v.  De  Haas  (1915)  —  Mich. 
— ,  151  N.  W.  718,  8  N.  C.  C.  A.  649. 

72  Memphis  Cotton  Oil  Co.  v.  Tolbert,  - 
Tex.  Civ.  App.  — ,  171  S.  W.  309,  7  N.  C. 
C.  A.  547. 

An  election  by  an  employer  not  to  pay 
compensation  under  the  act  relegates  the 
workman  to  a  suit  at  law  for  his  damages, 
measured  by  the  law  as  it  existed  prior  to 
L.R.A.1916A. 


,  the  act,  except  that  contributory  negligence, 
if  any,  of  the  workman,  shall  be  considered 
in  reduction  of  his  damages.  French  v.  Clo- 
verleaf  Coal  Min.  Co.  (1914)  190  111.  App.  400, 

Under  the  Kansas  act  of  1911,  an  em- 
ployer who  had  not  elected  to  come  in  under 
the  act  could  not  avail  himself  of  the  de- 
fenses of  assumption  of  risk  and  contribu- 
tory negligence,  save  in  mitigation  of 
damages.  Spottsville  v.  Western  States 
Portland  Cement  Co.  (1915)  94  Kan.  258, 
146  Pac.  356. 

73  Dietz  v.  Big  Muddy  Coal  &  I.  Co.  (1914) 
263  111.  480,  105  N.  E.  289,  5  N.  C.  C.  A.  419. 

An  employer  who  has  elected  to  reject  the- 
provisions  of  the  Illinois  act  is  deprived  of 
his  common-law  defenses,  although  the  em- 
ployee has  not  elected  to  come  under  the 
act.  Synkus  v.  Big  Muddy  Coal  &  I.  Co. 

(1914)  190  111.  App.  602;  Favro  v.  Superior 
Coal.  Co.  (1914)  188   111.  App.  203. 

74Ashton  v.  Boston  &  M.  R.  Co.  (1915) 
—  Mass.  — ,  109  N.  E.  820. 

74a  Hunter    v.    Colfax    Consol.    Coal    Co- 

(1915)  —  Iowa,  — ,  154  N.  W.  1037. 

75  Karny  v.  Northwestern  Malleable  Iron- 
Co.   (1915)   160  Wis.  316,  151  N.  W.  786. 

76  An  employee  who  has  accepted  part  B 
of  the  Connecticut  act  cannot  be  deprived' 
of   the   benefits    thereof   by   reason    of   the 
fact   that   his   employer,  who   has   also   ac- 
cepted part  B,  has  failed  to  furnish  satis- 
factory  proof   of   his   solvency   and   ability 
to  pay  directly  to  the  workman  or  benefi- 
ciaries  the   compensation    provided   by   the 
act,   or   to    insure    his    full    liability    under- 
part  B,  as  required  by  §  30  of  part  B,  al- 
though,  under    §   42   of   part    B,   such   em- 
ployer is  himself  deprived  of  such  benefit";. 
Bayon  v.  Beckley   (1915)   89  Conn.  154,  93; 
Atl.  139,  8  N.  C.  C.  A.  588. 


ELECTION  UNDER  OPTIONAL  ACT. 


conditions  specified  in  §  1,  of  the  com- 
mon-law defenses  of  assumed  risk,  con- 
tributory negligence,  and  fellow  service; 
it  is  merely  a  declaration  by  the  legis- 
lature of  the  public  policy  of  the  state 
in  that  regard.'7  But  the  Wisconsin  act, 
similar  in  terms  to  the  Illinois  act,  has 
been  said  to  be  "referable  to  the  police 
power."  78 

Under  some  of  the  acts  the  employer 
and  employee  are  subject  to  the  terms 
of  the  act  unless  they  take  affirmative 
action  to  show  their  intention  not  to  be 
bound  thereby.79  In  the  absence  of  any 
evidence  to  the  contrary  it  will  be  pre- 
sumed that  the  parties  have  accepted  the 
terms  of  the  act.80  In  order  to  sustain 
a  judgment  for  the  plaintiff  in  a  com- 
mon-law action  where  it  appears  that 
compensation  act  was  in  force,  it  rmist 
be  pleaded  and  proved  that  the  parties 
were  not  under  the  provisions  of  the 
act.81 


But  under  the  original  Kansas  act, 
where  there  was  such  evidence  that  the 
employer  had  not  elected  to  come  within 
the  provision,  and  there  was  neither  alle- 
gation nor  proof  that  he  had  done  so,  the 
court  properly  assumed  and  instructed 
the  jury  that  such  an  election  had  not 
been  made.82  So,  under  the  earlier  Kan- 
sas act  it  was  held  by  the  Missouri  court 
that  the  statement  required  by  §  44  of 
the  act  to  be  filed  with  the  secretary  of 
the  state,  to  the  effect  that  the  employer 
elects  to  come  under  the  provision  of  the 
act,  is  not  required  to  be  in  any  precise 
or  technical  form,  and  does  not  need  to 
be  evidenced  with  the  same  formality  as 
a  deed  or  other  instrument  which  trans- 
fers property.83  And  under  the  Michigan 
and  Washington  statutes,  the  employ- 
er must  take  affirmative  steps  to  ac- 
cept the  act  before  he  can  rely  upon  it 
or  be  subjected  to  its  provisions.  Thus, 
if  an  employer  desires  to  rely  upon  the 


TTDeibeikis  v.  Link-belt  Co.  (1913)  261 
HI.  454,  104  N.  E.  211,  Ann.  Cas.  1915A, 
241,  5  N.  C.  C.  A.  401. 

78  Milwaukee   v.   Miller    (1913)    154   Wis. 
652,    ante,    1,    144    N.    W.    188,    Ann.    Cas. 
1915B,  847,  4  N.  C.  C.  A.  149. 

79  If  an  employee  desires  to  avoid  the  act 
and  preserve  his  common-law  right,  he  must 
give  the  notice  required  by  part  1,  §  5  of  the 
act,  when  he  enters  the  employment,  rather 
than   when  he  is  notified  of  the  insurance 
by   the   employer,   in   accordance   with   part 
4,  §  21,  or  he  will  be  held  to  have  availed 
himself  of  the  act.    Young  v.  Duncan  (1914) 
218  Mass.  346,  106  N.  E.  1. 

Both  the  employer  and  the  employee  in 
the  specified  employment  become  subject 
to  the  Illinois  workmen's  compensation  act 
of  1911  without  any  affirmative  action  upon 
their  part,  and  the  elective  feature  of  the 
act  is  to  be  exercised  in  order  to  avoid  be- 
ing governed  thereby,  and  not  to  cause  the 
act  to  be  applied  in  any  given  case.  Dietz 
v.  Big  Muddy  Coal  &  I.  Co.  (1914)  263  111. 
480,  105  N.  E.  289,  5  N.  C.-C.  A.  419. 

Where  a  railroad  company  had  elected  to 
come  in  under  the  provisions  of  the  Wis- 
consin compensation  act,  an  employee  of 
the  company  who  failed  to  give  written 
notice  to  the  contrary  is  also  within  the 
act  although  he  was  employed  first  in 
Minnesota,  and  went  into  Wisconsin  to 
work  upon  the  request  of  the  employer,  and 
was  injured  four  days  thereafter.  Johnson 
v.  Nelson  (1914)  128  Minn.  158,  150  N.  W. 
620. 

Every  employer  and  employee  coming 
within  the  terms  of  the  act  is  bound  by  it 
unless  he  makes  an  election  not  to  accept 
it.  Harris  v.  Hobart  Iron  Co.  (1914)  127 
Minn.  399,  149  N.  W.  662,  7  N.  C.  C.  A.  44. 

80  There    is    a    presumption    of    law    that 
both  the  employer  and  employee  are  covered 
by  the  provisions  of  the  act  unless  it  ap- 
pears that  one  or  both  of  them  has  filed  an 
L.E.A.1916A. 


election  to  the  contrary,  as  provided  by  law. 
Krisman  v.  Johnston  City  &  B.  M.  Coal  & 
Min.  Co.  (1914)  190  111.  App.  612. 

Where  a  complaint  sets  up  a  contract  of 
hiring  between  the  employer  and  employee, 
made  subsequent  to  the  taking  effect  of 
the  workmen's  compensation  act  of  1911, 
and  does  not  aver  that  the  contract  con- 
tained any  express  statements  in  writing 
that  §  2  of  the  act  was  not  intended  to  ap- 
ply, nor  that  any  written  notice  to  that 
effect  was  given,  it  will  be  presumed  that 
the  parties  accepted  and  were  bound  by 
the  provisions  of  that  section.  Gregutis 
v.  Waclark  Wire  Works  (1914)  86  N.  J.  L. 
610,  92  Atl.  354,  affirming  —  N.  J.  L.  — , 
91  Atl.  98. 

A  complaint  under  the  employers'  liabil- 
ity act  of  New  Jersey,  for  injuries  received 
in  that  state  after  the  compensation  act 
took  effect,  will  be  dismissed  where  there 
is  nothing  to  show  that  either  party  has 
taken  steps  to  put  himself  outside  of  the 
scope  of  that  act.  Wasilewski  v.  Warner 
Sugar  Ref.  Co.  (1914)  87  Misc.  156,  149  N. 
Y.  Supp.  1035. 

The  statutory  presumption  that  all  em- 
ployers affected  by  the  workmen's  compen- 
sation act  of  1911,  as  amended  by  the  act 
of  1913,  are  within  its  provision,  obtains  un- 
til the  contrary  appears,  and  nonliability 
to  an  action  for  compensation  because  of 
an  election  to  stand  outside  the  provisions 
of  the  act  is  an  affirmative  defense.  Gorrell 
v  Battelle  (1914)  93  Kan.  370,  144  Pac. 
244;  Shade  v.  Ash  Grove  Lime  &  Portland 
Cement  Co.  (1914)  92  Kan.  146,  139  Pac. 
1193,  5  N.  C.  C.  A.  763. 

81  Krisman  v.  Johnston  City  &  B.  M.  Coal 
&  Min.  Co.  (1914)  190  111.  App.  612. 

82  Spottsville  v.  Western  States  Portland 
Cement  Co.    (1915)    94  Kan.  258,  146   Pac. 
359 

83platt  v.  Swift  &  Co.  (1915)  188  Mo. 
App.  584,  176  S.  W.  434. 


222 


WORKMEN'S  COMPENSATION. 


industrial  insurance  act,  which  with- 
draws from  the  court  jurisdiction  over 
injuries  to  employees,  he  must  plead  and 
prove  a  compliance  upon  his  part  with 
the  provisions  of  the  act.84  So,  in  order 
to  subject  the  employer  to4  the  provisions 
of  the  Michigan  act,  he  must  file  his 
acceptance  with  the  Industrial  Accident 
Board,  and  that  Board  must  approve  of 
it.85 

Under  the  Rhode  Island  act,  an  em- 
ployer may  file  his  acceptance  of  the  act 
at  a  date  prior  to  that  upon  which  the 
act  took  effect.86  An  employee  injured 
before  he  gives  notice  that  he  elects  not 
to  be  bound  by  the  Minnesota  act  is 
under  its  provisions,  although  he  gave 
such  notice  within  the  first  thirty  days 
immediately  succeeding  the  taking  effect 
of  the  act,  and  such  notice  took  effect 
immediately.87  Under  the  Washington 
act,  providing  that  upon  the  employer 
being  in  default  in  his  payment  into  ihe 
insurance  fund,  and  his  failure  to  make 
good  the  deficit  upon  demand,  an  injured 
workman  shall  have  a  right  and  the  em- 
ployer cannot  rely  upon  the  act,  an  in- 
jured workman  has  no  cause  of  action 
where  the  Commission  notified  the  em- 
ployer to  make  up  a  deficit  within  thirty 
days,  and  the  latter  did  so,  but  not  before 
the  employee  was  injured.88 

Under  the  Illinois  act,  an  election  by 
the  employer  to  reject  the  act  stands  un- 
til it  has  been  withdrawn.89  In  an  action 


for  personal  injury  arising  after  the 
passage  of  the  act  of  1911,  evidence  is- 
admissible  to  show  that  the  employer  had 
rejected  the  provisions  of  the  act.90  By 
the  express  provision  of  the  New  Jersey 
act,  it  will  apply  to  minors  unless  notice 
to  the  contrary  be  given  by  or  to  the 
parents  or  guardians  of  the  minor;  and 
a  notice  that  the  employer  elects  not  to 
come  under  the  provisions  of  the  act  is 
not  sufficient  where  it  is  posted  in  the 
works  or  given  to  the  minor  workman  in 
his  pay  envelop.91  The  legislature  may 
remove  the  disability  of  infancy  so  as  to 
permit  an  infant  old  enough  to  go  to 
work  under  the  labor  statute  to  make  an 
election  as  to  whether  he  will  work  under 
the  compensation  act  or  the  common 
law.92 

An  election  by  a  workman  to  come  in 
under  the  act  will,  in  case  of  his  death, 
bind  his  personal  representatives  and  hi& 
dependents.93 

An  employer  who  takes  part  in  pro- 
ceedings for  compensation  without  claim- 
ing exemption  from  the  operation  of  the 
act  cannot  be  heard  upon  appeal  to  say 
that  he  had  not  accepted  the  provisions 
of  the  act.94  A  judgment  for  damages 
after  a  trial  conducted  on  the  theory  that 
the  proceeding  was  an  action  for  dam- 
ages cannot  be  treated  as  an  award  for 
compensation,  although  both  parties  have 
subscribed  to  the  act;  but  the  judgment 
must  be  reversed.95 


In  the  same  case  it  was  held  that  the  au- 
thority of  the  officer  of  a  corporation  who 
signed  a  statement  to  the  effect  that  the  cor- 
poration had  come  within  the  provisions  of 
the  Kansas  compensation  act,  to  make  and 
file  a  statement,  need  not  be  affirmatively 
shown  where  it  is  proved  and  clearly  shown 
that  notices  to  that  effect  were  posted  in 
all  parts  of  the  plant  long  prior  to  the  in- 
jury in  question,  particularly  where  the 
question  whether  the  employer  elected  to 
come  under  the  provisions  of  the  act  is  not 
raised  by  the  injured  employee. 

84  Acres  v.  Frederick  &  Nelson   (1014)   79 
Wash.  402,  140  Pac.  370,  5  N.  C.  C.  A.  557. 

85  In  order  to  be  within  the  terms  of  the 
workmen's  compensation  act,  the  provisions 
of  the  act  must  be  followed,  and  any  state- 
ment   by    the    plaintiff    subsequent    to    the 
accident,  or  acceptance  of  compensation  by 
him,   will    not   make   the  •  act   applicable    if 
the  employer  has  failed  to  file  his  accept- 
ance with  the  Accident  Board,  and  if  that 
Board  has  failed  to  approve  of  it.     Bernard 
v.  Michigan  United  Traction  Co.   (1915)   — 
Mich.  — ,  154  N.  W.  565. 

86Coaldey  v.  Mason  Mfg.  Co.    (1914)   - 
R.  I.  — ,  90  Atl.  1073. 

87  Harris  v.  Hobart  Iron   Co.    (1914)    127 
Minn.  399,  149  N.  W.  662,  7  N.  C.  C.  A.  44. 

88  Barrett    v.    Grays    Harbor    Commercial 
Co.   (1913)  209  Fed.  95,  4  N.  C.  C.  A.  756. 

89  Snykus    v.   Big   Muddy   Coal   &   I.   Co. 
L.R.A.1916A. 


(1914)  190  111.  App.  602;  Bateman  v.  Car- 
terville  &  B.  M.  Coal  Co.  (1914)  188  111, 
App.  357. 

90  Crooks  v.  Tazewell  Coal  Co.  (1914)  262 
111.   343,   105   N.   E.   132,  Ann.   Cas.   1915C, 
304,  5  N.  C.  C.  A.  410. 

91  Troth  v.  Millville  Bottle  Works   (1914) 
86  N.  J.  L.  558,  91  Atl.  1031. 

92Herkey    v.    Agar    Mfg.    Co.    (1915)    90 
Misc.  457,  153  N.  Y.  Supp.  369. 

93  Where    a    deceased    employee    by    his 
agreement,   either   express   or   implied,   had 
accepted   and   become  bound  by  the   provi- 

|  sions  of  §  2  of  the  compensation  act,  his 
personal  representative  cannot  maintain  an 
action  under  the  death  act  for  damages  for 
his  death,  even  though  the  only  dependents- 
decedent  left  surviving  him  were  alien  non- 
residents of  the  United  States,  and  conse- 
quently not  entitled  to  compensation  under 
the  act  of  1911.  Gregutis  v.  Waclark  Wire 
Works  (1914)  86  N.  J.  L.  610,  92  Atl.  354, 
affirming  —  N.  J.  L.  — ,  91  Atl.  98. 

94  Milwaukee  Western  Fuel  Co.  v.  Indus- 
trial Commission   (1915)   159  Wis.  635,  150 
N.  W.  998. 

95  Where  it  appears  that  the  parties  had 
elected   to   be   bound   by   the   provisions   of 
the  Kansas  act,  but  the"  trial  was  conducted 
on   the   theory   that    it   was   an   action    for 
damages,  the  jury  were  instructed  to  con- 
sider the  case  as  one  based  upon  common- 


EXCLUSIVENESS  OF  REMEDY. 


223 


XXXI.  Exclusiveness    of    remedy    fur- 
nished  by   statute. 

As  to  alternative  remedies  furnished 
workman  or  dependents  under  the  Eng- 
lish act,  see  ante,  72. 

As  to  recovery  of  compensation  under 
the  English  act  where  action  for  damages 
has  failed,  see  ante,  81. 

a.  In  general. 

It  has  been  stated  that  the  compensa- 
tion acts  are  exclusive  in  all  cases  in 
which  they  are  applicable,96  and  all  other 
remedies  are  taken  away.97  But  if  the 
statutes  do  not  apply,  then  the  employee 
must  resort  to  the  existing  common-law 
or  statutory  remedy.  This  is  true  in  case 
the  parties  have  not  come  in  under  the 
optional  act,98  and  also  where  the  em- 
ployee for  some  reason  is  not  embraced 
within  the  terms  of  the  statute.99 

The  Arizona  act  passed  in  accordance 
with  the  mandate  of  §  8,  article  18,  of 
the  Constitution,  differs  from  all  other 
acts  in  that  it  is  compulsory  as  to  the  em- 
ployer, and  optional  as  to  the  employee, 
and  the  latter's  option  may  be  exer- 
cised after  the  injury  has  been  inflict- 
ed.1 But  the  option  whereby  the  em- 
ployee may  settle  for  compensation  or 


may  retain  the  right  to  sue  the  employer, 
as  otherwise  provided  for  by  the  Consti- 
tution, is  personal  to  the  workman,  and 
no  such  election  is  afforded  to  his  per- 
sonal representative.2  And  in  case  of 
injuries  resulting  in  the  death  of  the 
workman,  if,  as  a  matter  of  fact,  the 
deceased  after  the  injury,  and  before  his 
death,  elected  to  accept  compensation 
under  the  act,  it  is  a  matter  of  defense 
to  be  raised  by  plea  or  answer.3 

Where  a  petition  states  the  cause  of 
action  under  the  factory  act,  and  charges 
negligence,  but  discloses  a  situation  in 
which  a  recovery  can  be  had  only  under 
the  workmen's  compensation  act  of  1911, 
as  amended  by  the  act  of  1913,  the  dis- 
trict court,  having  the  jurisdiction  of  the 
parties  and  subject-matter,  should  not 
dismiss  the  action,  but  should  retain  it 
for  the  remedy  to  which  the  plaintiff  may 
prove  his  right.*  The  Illinois  compensa- 
tion act  is  not  the  kind  of  a  statute  con- 
templated by  the  provision  of  the  mining 
act  that  if  the  compensation  act  shall  be 
enforced  in  the  state,  providing  for  com- 
pensation to  workmen  for  all  injuries 
received  in  the  course  of  their  employ- 
ment, the  provisions  of  such  compensa- 
tion act  should  apply  instead  of  the  pro- 


law  liability  for  negligent  injury,  and  the 
verdict  was  rendered  awarding  damages  for 
pain,  suffering,  and  disfigurement,  the  ver- 
dict cannot  be  treated  as  an  award  of  com- 
pensation, nor  can  a  judgment  be  entered 
by  a  supreme  court  for  any  sum  as  com- 
pensation, although  there  was  some  evi- 
dence tending  to  show  partial  disability, 
and  some  testimony  as  to  the  recent  earn- 
ings of  the  plaintiff.  McRoberts  v.  Na- 
tional Zinc  Co.  (1914)  93  Kan.  364,  144 
Pac.  247. 

96  Where  the  employer  and  employee  have 
elected    to    come    within    the    provisions    of 
the  compensation  law,  that  law  is  exclusive. 
McRoberts  v.  National  Zinc  Co.    (1914)    93 
Kan.  364,  144  Pac.  247. 

97  The    legislature,   by   the    compensation 
act,  intended  to  take  away  from  employees 
who  should  become  subject  to  its  provisions 
all   other   remedies   that   they   had   against 
their   employers    for   injuries   happening    in 
the  course  of  their  employment  and  arising 
therefrom,  and  to  substitute  for  such  reme- 
dies the  wider  right  of  compensation  given 
by   the   act.     King  v.  Viscoloid   Co.    (1914) 
219  Mass.  420,  106  N.  E.  988,  7  N.  C.  C.  A. 
254. 

98  The   factory   act    (Gen.   Stat.    1909,   §§ 
4676-4683)    is  not  repealed.     It  remains  in 
full  force,  but  it  cannot  be  invoked  by  an 
employee  to  whom  the  benefits  of  the  work- 
men's compensation  act    (Laws  1911,  chap. 
218,  amended  by  Laws  1913,  chap.  216)  are 
available,   and    who   has   elected   to   accept 
them.     Where,  however,  the   employer   lias 
elected   not    to    accept    the    latter   act,    the 
L.R.A.1916A. 


I  employee  is  free,  notwithstanding  his  own 
acceptance,  to  bring  an  action  under  the 
factory  act.  Smith  v.  Western  States 
Portland  Cement  Co.  (1915)  94  Kan.  501, 
146  Pac.  1026  (headnote  by  the  court). 

99  As  where  the  employee  suffers  disfigure- 
ment only,  and  the  statute  provides  com- 
pensation only  for  loss  of  earning  capacity. 
Shinnick  v.  Clover  Farms  Co.  (1915)  169 
App.  Div.  236,  154  N.  Y.  Supp.  423. 

A  workman  for  a  city  contractor  engaged 
in  constructing  a  manhole  from  the  sur- 
face of  the  street  to  the  water  pipes  of  the 
city  water  system  is  not  engaged  in  extra- 
hazardous  employment  within  the  Washing- 
ton statute,  so  as  to  prevent  his  bringing 
an  action  for  damages  against  the  third 
person  through  whose  negligence  he  was 
injured.  Puget  Sound  Traction  Light  &  P. 
Co.  v.  Schleif  (1915)  135  C.  C.  A.  616,  22C 
Fed.  48. 

1  Under  §  8  of  the  Arizona  Constitution, 
I  the  legislature  cannot  require  an  employee 

to  elect  in  advance  of  any  injury  or  the  ac- 
crual of  any  right  of  action  whether  he  will 
proceed  under  the  employers'  liability  act 
or  under  the  compulsory  compensation  law; 
when,  however,  he  adopts  a  remedy,  that 
remedy  becomes  exclusive.  Consolidated 
Arizona  Smelting  Co.  v.  Ujack,  15  Ariz. 
382,  139  Pac.  465,  5  N.  C.  C.  A.  742. 

2  Behringer  v.  Inspiration  Consol.  Copper 
Co.  (1915)  —  Ariz.  — ,  149  Pac.  1065. 

3  Ibid.  (Ariz.) 

*  Shade  v.  Ash  Grove  Lime  &  Portland 
Cement  Co.  (1914)  92  Kan.  146,  139  Pac. 
1193,  5  N.  C.  C.  A.  763. 


224 


WORKMEN'S  COMPENSATION. 


visions  of  the  mining  act,  since  the 
Illinois  compensation  act  is  optional,  and 
consequently  does  not  provide  for  com- 
pensation to  workmen  for  "all"  injuries 
received  in  the  course  of  their  employ- 
ment.6 

An  employee  who  files  an  application 
for  payment  out  of  the  state  insurance 
fund  because  of  the  injuries  which  he 
has  received,  exercises  his  option  with- 
in the  meaning  of  section  1465-61,  gen- 
eral code,  and  cannot  subsequently  in- 
stitute proceedings  in  any  court  for 
damages  because  of  such  injuries,  not- 
withstanding the  application  blank 
which  he  made  out  and  filed  was  des- 
ignated by  the  State  Liability  Board  of 
Awards  as  "first  notice  of  injury  and 
preliminary  application"  and  under  the 
rules  of  the  board  a  subsequent  applica- 
tion for  payment  out  of  the  insurance 
funds  must  be  filed.5a 

The  term  "legal  representative"  as 
used  in  section  10  of  the  New  York  act 
which  authorized  in  cases  in  which  the 
employer  fails  to  secure  the  payment  of 
compensation  for  the  injured  employee 
or  in  case  of  his  death  is  "legal  repre- 
sentative" to  claim  compensation  or  to 
maintain  an  action  for  damages,  means 
the  dependent  or  dependents  and  not  an 
executor  or  an  administrator.51* 

The  right  to  proceed  under  the  existing 
laws  is  by  many  of  the  statutes  preserved 
to  an  employee  who  is  injured  by  the 
negligence  of  the  master.  Cases  involv- 
ing only  actions  for  damages  under  these 
provisions  have  not  been  included  in  this 
note,  since  they  are  not  in  any  way  in- 
fluenced by  the  fact  that  had  the  employ- 
er not  been  negligent,  the  employee  would 
have  been  obliged  to  seek  compensation 
as  his  remedy. 

b.  Where  injury  is  caused  by  wilful  or 
intentional   act  of  employer. 

In  some  of  the  statutes  there  is  a  pro- 
vision that  the  employee  may  pursue  his 


common-law  remedies  against  the  em- 
ployer if  the  injury  is  caused  by  some  act 
of  wilfulness  upon  the  part  of  the  em- 
ployer. The  "wilful  act"  of  the  employ- 
er, which,  under  the  Ohio  act,  does  not 
prevent  a  recovery  at  common  law  for 
the  resulting  injury  to  the  employee,  need 
not  be  an  act  done  with  an  intention  to 
inflict  injury,  but  the  term  includes  acts 
done  in  utter  disregard  of  the  conse- 
quences which  might  follow.6 

The  failure  to  guard  a  circular  saw  so 
as  to  prevent  it  from  throwing  off  slivers 
is  an  "intentional  omission"  within  the 
meaning  of  $  3  of  the  Illinois  act,  which 
provides  that  when  the  injury  to  an  em- 
ployee is  caused  by  the  intentional  omis- 
sion of  the  employer  to  comply  with 
safety  regulations  the  act  shall  not  affect 
the  civil  liability  of  the  employer.7  The 
failure  of  the  corporation  to  guard  a  set 
screw  on  a  revolving  shaft,  as  required 
by  the  same  section,  will  not  take  the 
corporation  out  of  the  protection  of  the 
act  unless  it  is  shown  that  the  omission 
to  guard  the  screw  was  brought  home  to 
the  notice  of  an  elective  officer  of  the 
corporation.8 

An  employee  is  not  estopped  under  the 
California  act  from  claiming  compensa- 
tion by  bringing  an  action  for  damages 
•  predicated  on  the  employer's  gross  neg- 
i  ligence  or   wilful   misconduct,   where   it 
!  appeared  that  there  was  no  such  gross 
negligence  or  wilful  misconduct;  in  such 
i  a  case  there  is  no  election  of  remedies, 
since    the    employee's    sole   remedy    was 
under  the  compensation  provisions  of  the 
act.9 

c.  Rights   of   parent   where   minor   em- 
ployee  is  injured. 

Under  the  Massachusetts  act  it  has 
i  been  held  that  the  fact  that  a  minor  has 

received  full  compensation  under  the 
I  act  for  his  injury,  does  not  affect  the 

right  of  a  parent  to  recover  for  his  loss 
1  because  of  his  child's  injury.  The  court 


5  Eldorado   Coal   &   Min.   Co.   v.   Mariotti 
(1914)   131  C.  C.  A.  359,  215  Fed.  51,  7  N. 
C.  C.  A.  966. 

5a  Zilch  v.  Bongardner  (1915)  —  Ohio 
— ,  110  N.  E.  459. 

51)  Dearborn  v.  Peugeot  Auto  Import. 
Co.  (1915)  —  App.  Div.  — ,  155  N.  Y.  Supp. 
769. 

6  McWeeny    v.    Standard   Boiler    &    Plate 
Co.  (1914)  210  Fed.  507,  4  N.  C.  C.  A.  919, 
affirmed  in  134  C.  C.  A.  169,  218  Fed.  361. 

7  Forrest   v.   Roper  Furniture   Co.    (1915) 
267  111.  331,  108  N.  E.  328. 

SBurnes  v.  Swift  &  Co.  (1914)  186  111. 
App.  460.  The  court  said:  "It  is  argued  by 
counsel  for  appellee  [employee]  with  much 
force  and  plausibility,  that  it  would  be  al- 
L.R.A.1936A. 


most  impossible  to  bring  notice  to  an 
elective  officer,  and  that  for  a  party  injured 
to  be  required  to  do  so  would  practically 
render  the  safety  appliance  act  nugatory. 
We  agree  with  counsel  that  such  construc- 
tion places  a  great  burden  upon  appellee, 
but  it  should  be  borne  in  mind  that  the 
object  of  the  legislature  in  passing  the 
compensation  act  was  to  bring  every  per- 
son within  its  provision,  that  it  was  all 
practical  to  do.  It  was  for  the  legislature, 
and  not  the  courts,  to  determine  under 
what  circumstances  and  conditions  and  for 
what  injuries  the  compensation  act  should 
be  adopted,  and  for  what  ones  the  safety 
act  should  prevail." 

9  In  cases  to  which  the  California  act  is 


REMEDIES— NEGLIGENCE  OF  THIRD  PERSON. 


225 


further  stated  that  the  express  provision 
in  the  act  that  the  workman's  right  of 
action  is  waived  or  discharged  by  his 
failure  to  give  notice  that  he  claimed  his 
c*ommon-law  right  is,  by  a  recognized 
rule  of  statutory  construction,  an  indi- 
cation that  it  was  not  intended  to  take 
away  the  right  of  anyone  but  himself.10 
It  was  also  held  in  the  same  case  that 
the  provision  that  the  insurer  shall  pay 
a  part  of  the  medical  expenses  made  nec- 
essary by  injury  to  an  employee  (pt.  2, 
§  5)  does  not  take  away  by  implication 
the  parent's  remedy  for  his  own  loss  in 
the  shape  of  an  injury  to  a  minor  child.11 

d.  Rights  and  remedies  where  negli- 
gence of  third  person  causes  the  in- 
jury. 

As  to  liability  under  English  act  of 
third  person  whose  negligence  caused  the 
injury,  see  ante,  101. 

In  cases  in  which  the  injury  to  an 
employee  was  caused  by  the  negligence  of 
third  persons,  the  employee  may,  under 
most  of  the  acts,  either  bring  an  action 
against  the  negligent  third  person  or  take 
proceedings  against  the  employer  for 
compensation ;  and  if  the  employer  or  his 
insurer  is  compelled  to  pay  compensation, 
he  may  recover  the  amount  he  has  been 
compelled  to  pay  from  the  tort  feasor. 
This,  however,  is  not  the  universal  rule, 
and  the  comparatively  few  cases  passing 
upon  this  point  present  several  different 
phases  of  the  question  and  a  number  of  j 
conflicting  views. 


Under  the  Wisconsin  act,  a  workman 
injured  by  the  negligence  of  a  third  per- 
son while  on  the  latter's  premises,  where 
he  was  at  work  by  the  direction  of  his 
employer,  has  a  right  of  action  against 
such  third  person  notwithstanding  both 
the  employer  and  such  third  person  have 
come  in  under  the  provisions  of  the  com- 
pensation act.12  The  election  of  remedies 
afforded  to  an  employee  by  part  3,  §  15 
of  the  act,  where  the  injury  was  caused 
under  circumstances  creating  a  legal  lia- 
bility in  some  person  other  than  the  sub- 
scriber to  pay  damages  in  respect  there- 
of, passes  in  case  of  the  death  of  the 
employee  to  his  administrator,  who  is 
bound  to  decide  whether  to  pursue  the 
remedy  under  the  death  statute  or  under 
the  workman's  compensation  act.18 

Under  the  Massachusetts  act,  a  work- 
man loses  his  right  to  compensation  from 
his  employer  where  he  accepts  a  settle- 
ment from  a  third  person  whose  negli- 
gence caused  the  injury.14  But  where  tne 
workman  subsequently  dies  of  his  injury, 
his  acceptance  of  a  settlement  from  such 
third  party  does  not  deprive  the  widow  of 
her  right  to  compensation.16 

A  release  given  to  an  employer  by  an 
employee  upon  the  receipt  of  compensa- 
tion does  not,  under  the  New  Jersey  act, 
release  a  tort  feasor  whose  negligence 
caused  the  accident.16  And  if  a  work- 
man is  injured  by  the  negligence  of  a 
third  person,  he  is  not  barred  from  re- 
ceiving compensation  by  the  fact  that  he 
had  made  a  settlement  with  such  third 
person  and  released  him.17  But  the  em- 


applicable,  an  injured  employee  had  no 
other  remedy  except  where  the  injuries 
were  caused  by  the  employer's  gross  negli- 
gence or  wilful  misconduct  of  a  certain 
specified  character,  and  the  workman  can- 
not be  held  to  be  estopped  from  pursuing 
his  remedy  before  the  Commission,  nor 
can  the  Commission  be  held  to  be  without 
jurisdiction  of  the  proceeding  instituted  by 
him,  by  the  fact  that,  prior  to  instituting 
his  proceeding  before  the  Commission,  he 
had  instituted  an  action  for  damages  in 
the  superior  court,  on  account  of  the  sar^e 
injuries,  where  the  complaint  in  such  ac- 
tion did  not  show  that  the  injury  was 
caused  by  the  employer's  gross  negligence 
or  wilful  misconduct  of  the  necessary  char- 
acter. San  Francisco  Stevedoring  Co.  v. 
Pillsbury  (1915)  —  Cal.  — ,  149  Pac.  586. 
10  King  v.  Viscoloid  Co.  (1914)  219  Mass. 
420,  106  N.  E.  988,  7  N.  C.  C.  A.  254.  The 
court  said:  "The  parent's  right  of  action 
was  not  in  any  just  sense  consequential 
upon  that  of  the  son.  It  was  independent 
of  his  right  and  was  based  upon  her  per- 
sonal loss.  His  action  was  for  the  pain 
and  suffering  caused  by  the  injury  and  for 
the  loss  of  wages  or  diminution  of  earning 
capacity  caused  thereby,  and  coming  after 


L.R.A.1916A. 


15 


he  should  have  attained  full  age.  Her  ac- 
tion was  for  the  expense  to  which  she  had 
been  put  by  reason  of  his  injury  and  for  the 
loss  of  his  services  or  wages  during  his 
minority." 

11  "Doubtless    the    parent    could    not    re- 
cover for  expenses  which  he  had  not  been 
called    on    to    incur,    and    in    fact   had   not 
incurred,  but  it  is  not  perceived  how  this 
could  have  any   greater  effect  than   to  re- 
duce somewhat  the  amount  of  damages  that 
might  be  recoverable."  (Mass.)  Ibid. 

12  Smale    v.    Wrought    Washer    Mfg.    Co. 
(1915)   160  Wis.  331,  151  N.  W.  803. 

l3Turnquist  v.  Hannon  (1914)  219  Mass. 
560,  107  N.  E.  443. 

14  The  driver  of  a  truck,  who  was  injured 
by  the  negligence  of  a  street  car  company, 
loses  his  right  of  compensation  under  the 
act    by    accepting    a    settlement    from    the 
street   car   company,   although   he   had   not 
brought  suit  against  the  company.    Cripps's 
Case  (1914)  216  Mass.  586,  104  N.  E.  565, 
Ann.  Cas.  1915B,  828. 

15  (Mass.)     Ibid. 

16  Jacowicz  v.  Delaware,  L.  &  W.  R.  Co. 
(1915)  —  N.  J.  — ,  92  Atl.  946. 

17  Where    a   workman   is   injured   by   an 
accident  arising  out  of  and  in  the   course 


226 


WORKMEN'S  COMPENSATION. 


ployer  has  no  right  of  subrogation  to  the 
claim  of  the  workman  against  the  tort 
feasor.18  Nor  can  he  recover  from  such 
tort  feasor  the  compensation  which  he 
has  paid  to  the  employee.19 

The  right  of  action  which  the  Wiscon- 
sin statute  gives  to  the  employer  against 
a  third  person  whose  wrongdoing  caused 
an  injury  to  an  employee  is  assignable, 
and  the  assignee  may  sue  thereon  in  his 
own  name.20 

Where  an  employee  is  killed  by  the 
negligence  of  a  third  person,  the  associa- 
tion in  which  the  deceased  is  insured 
may,  under  the  Massachusetts  act,  en- 
force the  right  given  to  the  employee.21 
This  right,  however,  does  not  amount  to 
the  right  of  equitable  subrogation.22 

Under  the  compulsory  acts  of  Wash- 
ington and  New  York,  no  express  right 
of  action  is  given  against  the  negligent 
third  person.  The  supreme  court  of 
Washington  has  held  that  a  workman 
under  the  law  of  that  state  has  no  right 
of  action  against  a  third  person  whose 
negligence  caused  the  injury.23  It  was 
also  held  in  the  same  case  that  the  title 
of  the  Washington  act,  indicating  that 


it  related  to  the  compensation  of  injured 
workmen,  is  broad  enough  to  include  the 
abolition  of  negligence  as  the  ground  of 
recovery  against  third  persons,  since  it 
indicates  that  the  act  is  intended  to  fur- 
nish the  only  compensation  to  be  allowed. 
But  the  Federal  circuit  court  of  appeals 
subsequently  held  that  an  employee  in- 
jured by  the  negligence  of  a  third  per- 
son has  a  right  of  action  against  such 
third  person  although  he  has  no  right 
of  action  against  his  employer.24  The 
Washington  case  was  distinguished 
upon  the  ground  that  the  third  person 
sought  to  be  held  liable  for  damages  was 
in  fact  the  president  of  the  employer 
railroad,  and  consequently  the  plaintiff 
in  that  ease  was  attempting  to  hold  an- 
other employee  of  the  company  liable. 
Nothing  is  made  of  this  point  in  the 
Washington  decision,  but  the  language 
is  general  in  its  terms,  and  is  in  direct 
conflict  with  the  decision  of  the  Federal 
court.  A  lower  New  York  court  has  also 
held  that  an  injured  employee  may  main- 
tain an  action  for  damages  against  neg- 
ligent third  persons.25 


of  his  employment,  and  a  tort  feasor  other 
than  his  employer  is  responsible  therefor, 
the  right  to  compensation  under  the  act 
is  not  lost  by  settlement  with  and  release 
of  the  tort  feasor.  Newark  Paving  Co.  v. 
Klotz  (1914)  85  N.  J.  L.  432,  91  Atl.  91, 
affirmed  (1914)  86  N.  J.  L.  690,  92  Atl. 
1086. 

18  The  right   to   compensation   under   the 
workmen's     compensation     act      1911,     as 
originally  enacted,  and  the  right  to  recover 
damages  of  a  tort  feasor,  are  of  so  differ- 
ent a  character  that  the  employer  has  no 
right  by  way  of  subrogation  to  the  claim  of 
the  workman  against  the  tort  feasor.      (N. 
J.)  Ibid. 

19  Where  an  employee  was  injured  prior 
to  the  act  of  1913,  through  the  negligence 
of   one   not   his   employer,   under   such   cir- 
cumstances as  to  entitle  him  to  compensa- 
tion  from   his   employer   under   the   act   of 
1911,   the   employer   cannot   recover   of   the 
tort   feasor  the   compensation   paid   to   the 
employee  under  the  statute;   the  statutory 
compensation  is  a  part  of  the  compensation 
of  the   employee   for  services  rendered   for 
which    the    employer   receives    a    quid    quo, 
and  the  loss  to  the  employer  is  the  value  of 
the   services   of   the   employee   to  him,  not 
the    necessary    expense    of    securing    them. 
Interstate   Teleph.   &   Teleg.   Co.   v.   Public 
Service  Electric  Co.   (1914)   86  N.  J.  L.  26, 
90  Atl.  1062,  5  N.  C.  C.  A.  524. 

20McGarvey  v.  Independent  Oil  &  Grease 
Co.  (1914)  156  Wis.  580,  146  N.  W.  895,  5 
N.  C.  C.  A.  803. 

21  Turnquist  v.  Hannon  (1914)  219  Mass. 
560,  107  N.  E.  443.  The  court  said: 
"Where  the  legislature  provides  that  the 
one  who  has  afforded  prompt  relief  to  the 
L.R.A.1916A. 


dependents  of  the  deceased  may  receive  the 
penalty,  there  is  no  legal  reason  why  it 
should  not  be  enforced." 

22  Part    3,    §    15,    simply    provides    that 
where  the  insurer  has  afforded  the  prompt 
relief   to    the    dependents    of    the   deceased 
employee    which    the   act   requires,   it    may 
enforce    for    its    own    benefit    the    right* 
against  tortious   third  persons  causing  his 
injury    which    would    otherwise    have   been 
available  to  the  employee  or  his  representa- 
tive, and  the  section  does  not  import  into 
its  terms  the  equitable  principle  of  subro- 
gation.     (Mass.)    Ibid. 

23  Any  right  of  action  which  an  injured 
employee    might    otherwise    have    had    for 
negligence   either   against   his   employer   or 
against  a  third  person  must  be  considered 
as  having  been  abolished  by  the  Washing- 
ton act,  which   imposes  upon  the  industry 
within  its  purview  the  burden  arising  out 
of  injuries  to  their  employees,  and  to  that 
end  withdraws  all  phases  of  the  premises 
from  private  controversy  regardless  of  ques- 
tions of  fault  and  to  the  exclusion  of  every 
other  remedy,  proceeding,  and  compensation 
except  as  provided  by  the  act.    Peet  v.  Mills 
(1913)  76  Wash.  437,  post,  358,  136  Pac.  685r 
Ann.  Cas.  1915D,  154,  4  N.  C.  C.  A.  786. 

24Meese  v.  Northern  P.  R.  Co.  (1914)  127 
C.  C.  A.  622,  211  Fed.  254,  4  N.  C.  C.  A.  819, 
reversing  206  Fed.  222. 

25  Notwithstanding  §  11  of  the  New  York 
act  states  that  the  liability  prescribed  by 
the  statute  shall  be  exclusive,  this  sec- 
tion refers  solely  to  the  liability  of  the 
employer,  and  does  not  prevent  an  injured 
employee  from  seeking  redress  in  a  com- 
mon-law action  against  third  parties  whose 
negligence  caused  his  injury.  Lester  v.  Otis- 


ACCIDENT  AND  PERSONAL  INJURY. 


227 


e.  Right  to  contract  out  of  the  statute. 

The  statutes  usually  contain  provisions 
prohibiting  any  contractual  limitation  of 
the  liability  to  pay  compensation,  or  any 
waiver  on  the  part  of  the  employee  of  his 
right  to  receive  compensation  prescribed 
by  the  statute.  An  agreement  by  an  em- 
ployee to  waive  his  right  to  compensation 
under  the  New  York  act  is  not  only  void 
as  against  public  policy,  but  also  under 
the  express  provision  of  §  32  of  that 
act.26  A  claim  for  compensation  for  the 
death  of  a  workman  is  not  barred  by  a 
release  by  the  decedent  in  his  lifetime, 
contained  in  his  application  for  admis- 
sion into  the  railroad  relief  association, 
and  by  a  further  release  by  his  widow 
on  receipt  of  the  death  benefit  from 
said  association.27 

XXXII.  "Accident"    and    "personal   in- 
jury." 

As  to  what  constitutes  "injury  by  ac- 
cident" under  the  English  act,  see  ante, 
29. 

Under  the  American  statutes,  which, 
like  the  English,  provide  for  compensa- 
tion for  "injuries  by  accident,"  the  court 
has  given  the  phrase  the  same  construc- 
tion as  do  the  English  courts.  The  word 
"accident"  is  said  to  be  used  in  its  popu- 
lar sense,28  and  has  been  defined  as  an 


unlooked  for  and  untoward  event  which 
is  not  expected  or  designed.29 

In  the  Minnesota  act,  the  phrase  "ac- 
cidental injuries"  is  used,30  and  undoubt- 
edly would  be  given  the  same  construc- 
tion as  is  given  to  the  term  "injury  by 
accident." 

The  Massachusetts  statute,  howeverr 
does  not  make  use  of  the  word  "accident" 
in  any  form,  but  provides  for  compensa- 
tion for  "personal  injury."  31  This  term 
has  been  held  to  include  any  injury  or 
disease  which  arises  out  of  and  in  -the 
course  of  the  employment  which  causes 
incapacity  for  work,  and  thereby  im- 
pairs the  ability  of  the  employee  for 
earning  wages ;  it  is  not  limited  to  injury 
caused  by  external  violence,  physical 
force,  or  as  the  result  of  accident  in  the 
sense  in  which  that  word  is  commonly 
used  and  understood,  but  includes  any 
bodily  injury.32 

Compensation  is  recoverable  not  only 
for  the  incapacity  which  is  the  direct 
effect  or  result  of  the  accident  or  injury, 
but  also  for  all  incapacity  which,  al- 
though indirect,  may  be  considered  as 
the  proximate  physical  result  of  it;  and 
such  proximate  result  need  not  be  one 
which  could  have  been  reasonably  antici- 
pated, since  reasonable  anticipation,  al- 
though an  element  of  negligence,  is  not. 
an  element  of  physical  causation.33 


Elevator  Co.  (1915)  90  Misc.  649,  153  N.  Y. 
Supp.  1058. 

26  Powley  v.  Vivian  &  Co.  (1915)  169  App. 
Div.  170,  154  N.  Y.  Supp.  426. 

27  West  Jersey  Trust  Co.  v.  Philadelphia 
&  R.  R.  Co.   (1915)   —  N.  J.  L.  — ,  95  Atl. 
753. 

28Boody  v.  K.  &  C.  Mfg.  Co.  (1914)  77 
N.  H.  208,  ante,  10,  90  Atl.  859,  Ann.  Cas. 
1914D,  1280;  Vennen  v.  New  Dells  Lumber 
Co.  (1915)  —  Wis.  — ,  post,  273,  154  N.  W. 
640. 

29  Bryant   v.   Fissell    (1913)    84   N.   J.   L. 
72,  86  Atl.  458,  3  N.  C.  C.  A.  585,  citing 
Fenton   v.  J.   Thorley   &  Co.    (1903)    A.   C. 
(Eng.)    443,  19  Times  L.  R.  684,   72  L.  J. 
K.  B.  N.  S.  787,  52  Week.  Rep.  81,  89  L.  T. 
N.  S.  314. 

30  State  ex  rel.  Duluth  Brewing  &  Malt- 
ing  Co.   v.   District   Ct.    (1915)    129    Minn. 
176,  151  N.  W.  912. 

31  "The    difference    between    the    English 
and  Massachusetts  acts  in  the  omission  of 
the  words  'by  accident'  from  our  act  which 
occur  in  the  English  act  as  characterizing 
personal  injuries  is  significant  that  the  ele- 
ment  of  accident  was   not   intended  to  be 
imported     into     our     act."       Hurle's     Case 
(1914)  217  Mass.  223,  post,  279,  104  N.  E. 
336,  Ann.  Cas.  1915C,  919,  4  N.  C.  C.  A. 
527. 

32  Johnson's  Case    (1914)   217  Mass.  388, 
104  N.  E.  735,  4  N.  C.  C.  A.  843. 

33  In    Milwaukee    v.    Industrial    Commis- 
L.R.A.1916A. 


sion  (1915)  160  Wis.  238,  151  N.  W.  247,. 
the  court  said:  "Proximate  cause  as  ap- 
plied to  negligence  law  has,  by  definition, 
included  within  it  the  element  of  reason- 
able anticipation.  Such  element  is  a  char- 
acteristic of  negligence,  not  of  physical 
causation.  As  long  as  it  was  necessary  to 
a  recovery  to  have  a  negligent  act  stand 
as  the  cause  of  a  injury,  it  did  no  harm  to- 
characterize  causation  in  part,  at  least, 
in  terms  of  negligence.  But  when,  as 
under  the  compensation  act,  no  act  of" 
negligence  is  required  in  order  to  re- 
cover, the  element  of  negligence,  name- 
ly, reasonable  anticipation,  contained  in  the 
term  'proximate  cause,'  must  be  eliminated' 
therefrom ;  and  the  phrase  'where  the  injury 
is  proximately  caused  by  accident,'  used  in 
the  statute,  must  be  held  to  mean  caused 
in  a  physical  sense,  by  a  chain  of  causa- 
tion which,  both  as  to  time,  place,  and 
effect,  is  so  closely  related  to  the  accident 
that  the  injury  can  be  said  to  be  proximate- 
ly caused  thereby.  To  incorporate  into 
the  phrase  'proximately  caused  by  acci- 
dent' all  the  conceptions  of  proximate  caiise 
in  the  law  of  negligence  would  be  to  lug 
in  at  one  door  what  the  legislature  in- 
dustriously put  out  at  another.  Proximate 
cause,  under  the  law  of  negligence,  always 
has  to  be  traced  back  to  the  conduct  of  a 
responsible  human  agency;  under  the  com- 
pensation act  the  words  'proximately  caused 
by  accident'  in  terms  relate  to  a  physicaL 


228 


WORKMEN'S  COMPENSATION. 


Hernia  resulting  from  some  unusual 
strain  or  exertion  by  the  workman  while 
acting  within  the  scope  of  his  employ- 
ment is  an  accident  for  which  compensa- 
tion is  recoverable.34  So,  the  court  of 
common  pleas  is  justified  in  finding  thi  t 
a  man's  death  was  due  to  accident  where, 
although  there  was  some  evidence  that 
pointed  to  cancer  and  an  internal  rupture 
of  some  kind,  the  rupture  occurred  while 
the  deceased  was  in  the  very  act  of  doing 
some  heavy  work,  namely,  furrowing  cer- 
tain heavy  posts,  pushing  them  forward 
against  the  knives  of  the  furrowing 
machine  by  pressing  his  abdomen  forci- 
bly against  the  ends  of  the  posts.35 

Under  the  American  statutes,  as  under 
the  English  act,  the  question  has  arisen 


whether  an  industrial  disease  is  an  acci- 
dent within  the  meaning  of  the  statute. 
Following  the  English  rule,  it  has  been 
held  that  where  no  specific  time  or  occa- 
sion can  be  fixed  upon  as  the  time  when 
an  accident  happened,  there  is  no  injury 
by  accident  within  the  meaning  of  the 
New  Jersey  act.86  Thus,  where  an  em- 
ployee, after  ten  days'  service  in  defend- 
ant's bleachery,  was  affected  with  a  rash 
which  was  pronounced  to  be  a  condition 
of  eczema,  and  might  be  caused  by  acids, 
his  injury  is  not  "by  accident"  within 
the  meaning  of  the  New  Jersey  act.37  So 
it  has  been  held  that  lead  poisoning  is 
not  an  accident  within  the  meaning  of 
the  Michigan  act.38  But  under  the  Mass- 
achusetts act,  lead  poisoning  has  been 


fact  only;  namely,  an  accident.  Hence  if 
the  injury  or  death  can  be  traced  by  phys- 
ical causation  not  too  remote  in  time  or 
place  to  the  accident,  then  such  injury  or 
•death  was  proximately  caused  by  the  acci- 
.dent,  irrespective  of  any  element  of  reason- 
able anticipation." 

"An  injury,  to  come  within  the  com- 
pensation act,  need  not  be  an  anticipated 
one;  nor,  in  general,  need  it  be  one  peculiar 
to  the  particular  employment  in  which  he 
is  engaged  at  the  time."  State  ex  rel. 
People's  Coal  &  Ice  Co.  v.  District  Ct.  (1915) 
129  Minn.  502,  post,  344,  153  N.  W.  119.  In 
this  case  the  employee  was  struck  by  light- 
ning while  standing  under  a  tree  to  which 
he  had  gone,  for  protection,  from  his  ice 
wagon  which  it  was  his  duty  to  drive. 

Death  may  be  the  result  of  the  injury 
within  the  meaning  of  the  Massachusetts 
workmen's  compensation  act,  whether  or 
not  it  was  the  reasonable  and  likely  con- 
sequence of  the  injury.  Sponatski's  Case 
(1915)  220  Mass.  526,  post,  333,  108  N.  E. 
466,  8  N.  C.  C.  A.  1025. 

8*  A  rupture  caused  by  a  strain  while  at 
work  is  an  accident  or  untoward  event  aris- 
ing in  the  course  of  the  employment,  and 
compensible  under  the  workmen's  compen- 
sation act.  Poccardi  v.  Public  Service  Com- 
mission (1915)  —  W.  Va.  — ,  post,  299,  84 
S.  E.  242,  8  N.  C.  C.  A.  106. 

Hernia  resulting  from  a  workman  at- 
tempting to  move  a  heavy  truck  in  the 
line  of  his  employment  is  an  injury  result- 
ing "from  some  fortuitous  event  as  distin- 
guished from  the  contraction  of  a  disease" 
within  the  meaning  of  the  Washington 
statute.  Zappala  v.  Industrial  Ins.  Com- 
mission (1914)  82  Wash.  314,  post,  295,  144 
Pac.  54.  The  court  said:  "The  sustaining 
of  an  injury  while  using  extreme  muscular 
effort  in  pushing  a  heavily  loaded  truck 
is  as  much  within  the  meaning  of  a  for- 
tuitous event  as  though  the  injury  were  the 
result  of  a  fall  or  the  breaking  of  the 
truck.  To  hold  with  the  Commission  that 
if  a  machine  breaks,  any  resulting  injury 
to  a  workman  is  within  the  act,  but  if  the 
man  breaks,  any  resulting  injury  is  not 
within  the  act,  is  too  refined  to  come  with- 
L.R.A.1916A. 


in  the  policy  of  the  act  as  announced  by 
the  legislature  in  its  adoption,  and  the 
language  of  the  court  in  its  interpretation." 
The  court  also  said:  "The  rules  adopted 
by  the  Commission  governing  hernia  cases 
are:  (1)  There  must  be  an  accident  result- 
ing in  hernia;  (2)  the  hernia  must  have 
appeared  just  following  the  accident;  (3) 
there  must  have  been  present  pain  at  the 
time;  (4)  the  applicant  must  show  that  he 
did  not  have  hernia  before  the  accident; 
(5)  hernia  coming  on  while  a  man  is  fol- 
lowing his  usual  work  is  not  an  accident." 
In  this  case  the  evidence  showed  that  the 
workman  was  in  the  employ  of  a  cooper- 
age company,  and  on  the  day  of  the  alleged 
injury  was  pushing  a  heavily  loaded  truck; 
that  the  car  ran  harder  than  usual,  and  he 
tried  three  or  four  times  to  start  it,  but 
could  not  move  it,  and  then  put  all  of  his 
strength  into  it,  gave  a  jerk  and  hurt 
himself.  The  court  said:  "The  evidence 
takes  the  case  out  of  the  fifth  rule,  show- 
ing, as  we  have  held,  that  the  hernia  in  this 
case  resulted  from  a  fortuitous  event  or 
accident,  and  is  not  one  appearing  while 
the  workman  was  following  his  usual  work 
without  accident  or  fortuitous  event  to 
which  the  result  might  be  directly  trace- 
able." 

35  Voorhees    v.    Smith    Schoonmaker    Co. 
(1914)  86  N.  J.  L.  500,  92  Atl.  280,  7  C.  C. 
A.  646. 

36  In     Liondale    Bleach,    Dye,     &     Paint 
Works  v.  Riker   (1913)   85  N.  J.  L.  426,  89 
Atl.  929,  4  N.  C.  C.  A.  713,  in  holding  that 
where  no  specific  time  or  occasion  can  be 
fixed   upon   as   the   time   when   the   alleged 
accident   happened,   there   is   no   injury   by 
accident  within  the  meaning  of  the  act,  the 
court  said:      "This  seems  a  sensible  work- 
ing rule,  especially  in  view  of  the  provisions 
of   the  statute  requiring  notice   in  certain 
cases  within  fourteen  days  of  the  occurrence 
of  the  injury,  a  provision  which  must  point 
to   a  specific  time." 

37  Ibid.   (N.  J.) 

38  If  the  Michigan  act  should  be  held  to 
apply  to  occupational  diseases,  it  would  be 
unconstitutional  under  the  provision  of  the 
Constitution    that    no    law    shall    embrace 


ACCIDENT  AND  PERSONAL  INJURY. 


229 


held  to  be  a  "personal  injury."  39  As  has 
been  pointed  out,  the  requirement  of  a 
statute  that  notice  of  the  "accident"  be 
given  to  employers  within  a  fixed  period 
of  time  indicates  that  the  legislature  had 
in  mind  something  that  occurred  at  some 
specific  time,  which  would  exclude  oc- 
cupational diseases.  This  inference  might 
also  be  drawn  with  regard  to  the  Mass- 
achusetts act,  but  the  courts  of  that 
state  had  held  that  the  same  rule  does 
not  apply  to  the  latter  act,40  and  that  the 
"personal  injury"  arises  at  the  time  when 
the  employee  becomes  incapacitated.41 

If  a  disease  other  than  an  occupational 
disease  is  the  direct  result  of  the  condi- 
tions under  which  the  workman  is  em- 
ployed, there  can  be  no  questions  but 


that  it  is  a  "personal  injury."  Thus,  an 
attack  of  optic  neuritis  induced  by  poi- 
sonous coal  tar  gases  from  furnaces 
which  it  was  the  workman's  duty  to  at- 
tend, which  attack  resulted  in  total  loss 
of  vision,  is  a  "personal  injury"  within 
the  meaning  of  the  Massachusetts  act.42 
So,  an  employee  who  inhales  damp  smoke 
and  is  drenched  with  water,  and  as  a 
result  contracts  lobar  pneumonia  jind 
dies,  may  be  found  to  have  suffered  a 
personal  injury  within  the  meaning  of 
the  Massachusetts  act.43  And  typhoid 
fever  contracted  by  an  employee  in 
drinking  contaminated  water  furnished 
to  him  by  his  employer  is  an  accident 
within  the  meaning  of  the  Wisconsin 
act.44  So,  too,  the  death  of  a  person 


more  than  one  subject,  which  shall  be  ex- 
pressed in  its  title.  Adams  v.  Acme  White 
Lead  &  Color  Works  (1914)  182  Mich.  157, 
post,  283,  148  N.  W.  485,  6  N.  C.  C.  A. 
482. 

39  Johnson's  Case   (1914)    217   Mass.  388, 
104  N.  E.  735,  4  N.  C.  C.  A.  843. 

40  Blindness   through   optic   neuritis,   due 
to  poisonous  gases   from   a   furnace   about 
which  the  injured  person  is  obliged  to  work, 
is  a  personal  injury  within  the  meaning  of 
the  Massachusetts  act,  although   the   stat- 
ute requires  that  information  shall  be  given 
as  to  the  time,  place,  and  cause  of  the  in- 
jury, as  soon  as  practical  after  it  is  suffered, 
and  that  the   employer  shall  make  return 
of    an    accident    resulting    in    any    injury. 
Hurle's  Case    (1914)    217   Mass.  223,   post, 
279,  104  N.  E.  336,  Ann.  Cas.  1915C,  919,  4 
N.  C.  C.  A.  527. 

41  Although    it    was    found    that    a    lead 
grinder  had  been  absorbing  lead   poisoning 
into  his  system  for  twenty  years,  the  In- 
dustrial Accident  Board  is  justified  in  find- 
ing that  the  injury  arose  at  the  time  when 
he  became  incapacitated   for  work  because 
of    the    poison.      Johnson's    Case     (Mass.) 
supra. 

42  In    Hurle's    Case    (Mass.)     supra,    the 
court  said:     "The  English  workmen's  com- 
pensation   act    affords    compensation    only 
where   the   workman   receives   'personal   in- 
jury by  accident.'     It  adds  to  the  personal 
injury   alone   required  by   our  act   the   ele- 
ment  of   accident.      Yet    it   has    been   held 
frequently    that    disease    induced    by    acci- 
dental means  was  ground  for  recovery;  as, 
for  example,  a  rupture  resulting  from  over-  f 
exertion  (Fenton  v.  J.  Thorley  &  Co.  [1903]  | 
A.  C.   (Eng.)   443,  72  L.  J.  K.  B.  N.  S.  787,  ' 
52  Week.  Rep.  81,  89  L.  T.  N.  S.  314,  19 
Times  L.  R.  684)  ;  infection  of  anthrax  from 
a    bacillus    from    wool    which    was    being 
sorted    (Brintons   v.    Turvey    [1905]    A.   C. 
(Eng.)   230,  74  L.  J.  K.  B.  N.   S.  474,  53 
Week.    Rep.   641,   92   L.   T.   N.    S.    578,   21 
Times   L.   R.   444,  2   Ann.   Cas.   137);    heat 
from  a  furnace  (Ismay  I.  &  Co.  v.  William- 
son [1908]  A.  C.  (Eng.)  437,  77  L.  J.  P.  C. 
N.  S.  107,  99  L.  T.  N.  S.  595,  24  Times  L.  R. 
881,   52   Sol.  Jo.   713)  ;    sunstroke    (Morgan  ' 
L.R.A.1916A. 


v.  The  Zenaida  (1909)  25  Times  L.  R.  446, 
2  B.  W.  C.  C.  19) ;  pneumonia  induced  by 
inhalation  of  gas  (Kelly  v.  Auchenlea  Coal 
Co.  [1911]  S.  C.  864,  48  Scot  L.  R.  768,  4 

B.  W.  C.  C.  417).    See  also  Brown  v.  George 
Kent   [1913]   3  K.  B.    (Eng.)    624,  82  L.  J. 
K.  B.  N.  S.  1039,  109  L.  T.  N.  S.  293,  29 
Times  L.  R.  702.   6  B.  W.  C.  C.   745,  and 
Alloa  Coal  Co.  v.  Drylie  [1913]  S.  C.  549.  50 
Scot.  L.  R.  350,  6  B.  W.  C.  C.  398,  4  N.  C. 

C.  A.  899.     We  lay  these  cases  on  one  side, 
however,  because  it  is  plain  from  the  third 
schedule  of  Stat.  6  Edw.  VII.  chap.  58,  that 
certain  occupational  diseases  were  intended 
to  be  included  within  the   English  act." 

43  Re  McPhee  (1915)  —  Mass.  — ,  109  N, 
E.  633. 

44  Vennen    v.     New    Dells    Lumber    Co. 
(1915)  —  Wis.  — ,  post,  273,  154  N.  W.  640. 
The  court  said:     "The  term  'accidental,'  as 
used  in  compensation   laws,  denotes  some- 
thing unusual,  unexpected,  and  undesigned. 
The  nature  of  it  implies  that  there  was  an 
external    act    or    occurrence    which    caused 
the   personal   injury   or   death   of   the   em- 
ployee.   It  contemplates  an  event  not  with- 
in one's  foresight   and  expectation,  result- 
ing in  a  mishap  causing  injury  to  the  em- 
ployee.    Such  an  occurrence  may  be  due  to 
purely  accidental  causes,  or  it  may  be  due 
to  oversight  and  negligence.     The  fact  that 
deceased  became  afflicted  with  typhoid  fever 
while  in  defendant's  service  would  not,  in 
the    sense    of    the    statute,    constitute    a 
charge  that  he  sustained  an  accidental  in- 
jury,  but    the   allegations   go   further,   and 
state    that    this    typhoid    affliction    is    at- 
tributable    to     the     undesigned     and     un- 
expected occurrence  of  the  presence  of  bac- 
teria in  the  drinking  water  furnished  him 
by  the  defendant,  as  an  incident  to  his  em- 
ployment.    These   facts  and   circumstances 
clearly  charge  that  Vennen's  sickness  was 
the  result  of  an  unintended  and  unexpected 
mishap  incident  to  his  employment.     These 
allegations    fulfil    the   requirements   of    the 
statute   that   the  drinking   of   the   polluted 
water   by   the   deceased   was  an   accidental 
occurrence  while  he   was  'performing  serv- 
ices growing  out  of  and   incidental   to  his 
employment.'     It  is  alleged  that  the  conse- 


230 


WORKMEN'S  COMPENSATION. 


employed  to  cut  grass  on  the  railroad 
right  of  way  by  infection  from  poison 
ivy  is  accidental  within  the  meaning  of 
the  New  York  statute.45 

Compensation  is  also  recoverable  where 
a  disease  is  a  direct  result  of  the  acci- 
dent,46 or  where  it  supervenes  after  an 
accident,  and  further  incapacitates  the 
employee,  where,  but  for  the  accident, 
the  disease  would  not  have  been  con- 
tracted.47 

Blood  poisoning  directly  traceable  to 
the  accident  is  the  proximate  result 
thereof,  and  compensation  is  recoverable 
for  incapacity  or  death  resulting  there- 
from.48 But  where  it  is  found  that  the 
wound  was  healing,  and  that  the  blood 
poisoning  was  caused  by  an  independent 
intervening  cause,  no  compensation  is  re- 
coverable for  the  added  incapacity  re- 
sulting from  that  intervening  cause.49 

That  the  employee  was  in  a  debilitated 
condition,  or  was  suffering  from  some 
disease  at  the  time  of  the  accident,  so 


that  the  accident  resulted  in  his  death, 
while  it  would  have  had  less  serious  re- 
sults had  the  employee  been  a  normally 
healthy  man,  does  not  prevent  his  de- 
pendents from  recovering  compensation 
for  his  death.  Thus,  acceleration  of  pre- 
viously existing  heart  disease  to  a  mor- 
tal end  sooner  than  it  would  have  come 
otherwise  is  an  injury  within  the  mean- 
ing of  the  act.50  So,  a  workman's  death 
may  be  held  to  be  the  result  of  an  injury 
where,  after  working  hard  during  the 
forenoon  at  heavy  labor,  he  attempted 
to  carry  bags  of  coal,  weighing  approx- 
imately 150  to  200  pounds,  and,  in  at- 
tempting to  lift  one,  fell  to  the  ground 
and  died  immediately  or  shortly  there- 
after, and  there  was  expert  testimony  to 
the  effect  that  a  few  years  before  he  had 
suffered  from  acute  articular  rheuma- 
tism, and  that  an  affection  of  the  valves 
of  the  heart  ordinarily  followed  cases 
of  acute  inflammatory  rheumatism.51 


quences  of  this  alleged  accident  resulted 
in  afflicting  Vennen  with  typhoid  disease, 
which  caused  his  death.  Diseases  caused 
by  accident  to  employees  while  'perform- 
ing services  growing  out  of  and  incidental 
to  his  employment'  are  injuries  within  the 
contemplation  of  the  workmen's  compensa- 
tion act." 

45plass  v.  Central  New  England  R.  Co. 
(1915)  —  App.  Div.  — ,  155  N.  Y.  Supp. 
854. 

46  The  supreme  court  will  not  reverse  the 
findings  of  fact  that  the  death  of  an  em- 
ployee  was   due   to    injury    arising   out    of 
and  in  the  course  of  his  employment,  where 
the  employee  died  of  pneumonia,  and  there 
was  expert  evidence  to  the  effect  that  the 
direct  cause  of  the  pneumonia  was  a  hurt 
or  strain  of  the  back  suffered  by   the  de- 
ceased about  two  weeks  before  his  death, 
although    such   expert   evidence   was   flatly 
contradicted     by     other     expert     evidence. 
Bayne  v.  Riverside  Storage  &  Cartage  Co. 
(1914)   181   Mich.  378,  148  N.  W.  412,  5  N. 
C.  C.  A.  837. 

47  Where  an  employee's  arm  was  broken 
while   he   was    in    the   defendant's    employ, 
and   was   treated   at   a  hospital   where   the 
fracture    properly    united,    but    there    de- 
veloped an  abscess  upon  the  fleshy  part  of 
the  thumb,  which  resulted  in  ankylosis  of 
the  thumb,  making  it  permanently  useless, 
the  injury  of  the  thumb  was  an  injury  aris- 
ing by  accident  out  of  and   in  the  course 
of  his  employment.     Newcomb  v.  Albertson 
(1913)  85  N.  J.  L.  435,  89  Atl.  928,  4  N.  C. 
C.  A.   783.     The  court   said:      "We  cannot 
assume  that  the  infection  could  be  caused 
only   by    the   negligence    of   the   physician, 
and   it   is   therefore   unnecessary   to   decide 
whether  such  negligence  would  amount  to 
such  a  break  in  the  chain  of  causation  that 
the  employer  would  not  be  liable." 

48  Disability  resulting  from  blood  poison-  ' 
L.R.A.1916A. 


ing  may  be  found  to  be  the  proximate  re- 
sult of  an  injury  to  the  hand  of  an  em- 
ployee which  bruised  the  flesh  and  knocked 
a  small  piece  of  the  skin  off  the  back  of  the 
hand,  where  the  time  that  transpired  be- 
tween the  abrasion  and  the  beginning  of  the 
pain  was  the  usual  period  of  infection  of 
one  form  of  the  disease  commonly  termed 
"blood  poisoning."  Great  Western  Power 
Co.  v.  Pillsbury  (1915)  —  Cal.  — ,  post,  281, 

151  Pac.  1136. 

The  accident,  and  not  blood  poisoning, 
will  be  held  to  be  the  proximate  cause  of 
the  death  of  an  employee  who  received  a 
fracture  of  the  spine  which  necessitated 
his  lying  in  bed  in  one  position,  and  by 
reason  of  this  an  extensive  bed  sore  was 
developed,  which  extended  and  grew  worse 
until  it  brought  about  the  blood  poisoning 
that  was  the  immediate  cause  of  his  death. 
Re  Burns  (1914)  218  Mass.  8,  105  N.  E. 
601. 

49  The  aggravation  by  a  boxing  match  of 
a  wound  received  in  the  course  of  the  em- 
ployment, which  had  practically  healed,  and 
would  have  caused  no  further  trouble  had 
it   been   given   a   little   more   rest,   so   that 
blood  poisoning  and  permanent  injuries  to 
the   hand   result,   is   a   proximate   cause   of 
such   injury,   and   no   recovery   can   be   had 
under  the  Wisconsin  act.    Kill  v.  Industrial 
Commission   (1915)   160  Wis.  549,  ante,  14, 

152  N.   W.   148. 

50  Brightman's  Case  (1914)  220  Mass.  17, 
post,  321,  107  N.  E.  527,  8  N.  C.  C.  A.  102, 
citing    Wiemert    v.    Boston    Elev.    R.    Co. 
(1914)  216  Mass.  598,  104  N.  E.  360;  Clover, 
C.   &   Co.   v.   Hughes    [1910]    A.   C.    (Eng.) 
242,  79  L.  J.  K.  B.  N.  S.  470,  102  L.  T.  N.  S. 
340,  26  Times  L.  R.  359,  54  Sol.  Jo.  375,  3 
B.  W.  C.  C.  275,  47  Scot.  L.  R.  885. 

51  Fisher's    Case    (1915)    220    Mass.    581, 
108  N.  E.  361. 


ACCIDENT  AND  PERSONAL  INJURY. 


231 


And  the  dependents  of  a  school  principal 
whose  death  was  caused  by  a  blow  on 
the  head  from  a  basket  ball  may  recover 
compensation  although  the  deceased  was 
suffering  from  an  advanced  stage  of  ar- 
terial sclerosis  at  the  time  he  was  in- 
jured, and  had  he  not  been  so  suffering, 
the  blow  he  received  would,  in  all  prob- 
ability, have  caused  no  serious  injury.52 

Likewise  it  has  been  held  that  com- 
pensation is  recoverable  where  the  man's 
incapacity  is  the  direct  result  of  an  in- 
jury, although  such  incapacity  is  largely 
subjective,  he  apparently  not  having  the 
will  power  to  throw  off  the  after-effects 
of  the  injury  to  the  extent  which  his 
physical  condition  warrants.53 

An  employee  of  a  mill  company,  who 
is  drowned  while  cleaning  rubbish  out 
of  a  flume,  suffers  death  by  accident."* 

The  fact  that  the  injury  was  the  result 
of  a  wilful  or  criminal  assault  by  another 
does  not  exclude  the  possibility  that  the 
injury  was  caused  by  accident.55  So, 
an  employee  who  was  shot  while  at- 
tempting to  remove  an  intruder  from  the 
factory  in  which  he  was  employed  suf- 


fered "personal  injury"  within  the  mean- 
ing of  the  Massachusetts  act.68 

An  injury  is  none  the  less  an  accident 
j  because  it  was  occasioned  by  a  sportive 
act  of  a  fellow  employee.56* 

In  one  case,  the  Wisconsin  court  re- 
jected the  contention  of  the  employer 
that  an  injury  resulting  from  careless- 
ness or  negligence  is  not  one  that  can  be 
said  to  have  been  accidentally  sustained 
in  the  sense  of  the  compensation  act.57 

Where  the  common  pleas  judge  found 
as  a  fact  that  the  decedent  was  killed 
"by  a  heavy  bar  of  metal  falling  upon 
his  head  from  one  of  the  upper  stories" 
of  the  building  upon  which  he  was  at 
work,  and  that  the  falling  of  the  bar  was 
caused  by  another  fellow  workman,  the 
decedent's  death  was  caused  by  "an  ac- 
cident" within  the  purview  of  the  act.58 

The  burden  of  proving  that  there  was 
an  accident  which  caused  the  injury  in 
question  is  upon  the  petitioner,59  and  an 
award  cannot  stand  which  is  based  mere- 
ly upon  conjecture.60  That  the  injury 
was  caused  by  accident,  however,  may 
be  shown  by  circumstantial  evidence.61 


52  Milwaukee    v.    Industrial    Commission 
(1915)    160  Wis.  238,  151  N.  W.  247. 

53  Where    a    workman    is   partially    inca- 
pacitated for  work  by  reason  of  a  condition 
of  hysterical  blindness  and  neurosis,  he  is 
entitled    to    compensation    if   such    injuries 
flow  as  a  proximate  result  from  an  actual 
physical    impact,    although    slight,   received 
by  him  in  the  course  of  and  arising  out  of 
his    employment,    although    apparently    he 
did  not  have  sufficient  will  power  to  throw 
off   the   condition   and   go  to   work,   as   his 
physical  capacity  amply  warranted  him  in 
doing.     HunnewelFs  Case  (1915)   220  Mass. 
351,  107  N.  E.  934. 

54Boody  v.  K.  &  C.  Mfg.  Co.  (1914)  77' 
N.  H.  208,  ante,  10,  90  Atl.  859. 

55  Western    Indemnity    Co.    v.    Pillsbury 
(1915)    --   Cal.   — ,    151    Pac.   398    (section 
foreman  assaulted  by  member  of  gang  who 
had  been  discharged). 

In  McNicol's  Case  (1913)  215  Mass.  497, 
post,  306,  102  N.  E.  697,  4  N.  C.  C.  A.  522; 
compensation  was  allowed  for  injuries 
caused  by  an  assault  of  an  intoxicated  fel- 
low workman,  but  the  case  turned  upon  the 
question  whether  the  injury  was  received 
in  the  course  of  the  employment,  and  not 
whether  it  was  such  an  injury  as  to  en- 
title the  workman  to  compensation. 

56  Re  Reithal  (1915)  —  Mass.  — ,  post,  304, 
109  N.  E.  951. 

56aDe    Fillipis    v.    Falkenberg    (1915)    - 
App.  Div.  — ,  155  N.  Y.  Supp.  761. 

57  Vennen     v.     New     Dells     Lumber     Co. 
(1915)  —  Wis.  — ,  post,  273,  154  N.  W.  640. 
The  court  said:     "In  the  popular  sense  the 
words    as    used    in    the    compensation    act 
referring  to  a  personal  injury  accidentally 
sustained  by  an  employee  while  performing 
services  growing  out  of   and   incidental   to 
L.R.A.1916A. 


his  employment  include  all  accidental  in- 
juries, whether  happening  through  negli- 
gence or  otherwise,  except  those  intentional- 
ly self-inflicted." 

58  Bryant  v.  Fissell  (1913)  84  N.  J.  L.  72, 
86  Atl.  458,  3  N.  C.  C.  A.  585. 

59  The  burden  of  proving  that  death  was 
caused  by  accident   arising  out   of   and   in 
the  course  of  the  employment  is  upon  the 
petitioner;  and  where  the  physician  in  at- 
tendance  refuses   to  state  that   death   was 
caused   by  the   accident,   there   is   no  basis 
or   inference   to   that   effect   by   the   court. 
Reimers  v.  Proctor  Pub.  Co.  (1913)  85  N.  J. 
L.  441,  89  Atl.  931,  4  N.  C.  C.  A.  738. 

60  Where  a  workman  employed  in  build- 
ing a   bridge   over   a  river   near   its   outlet 
in  a  bay  was  last  seen  alive  at»his  home 
some   miles    from   the   place   of   work,   and 
two  hours  before  he  was  to  return  to  his 
work,  and  his  body  was  afterwards  found 
in  the  bay,  and  there  was  no  evidence  as 
to  how  he  met  his  death,  it  may  properly 
be  inferred  that  he  came  to  his  death  by 
accident,   but   not   that   the  accident   arose 
out  of  his  employment.     Steers  v.  Dunne- 
wald   (1913)   85  N.  J.  L.  449,  89  Atl.  1007, 
4  N.  C.  C.  A.  676. 

61  An  accident  may  be  inferred  where  an 
employee  was  found  dead  under  a  train  of 
cars    with    a    hole    of    about    6    inches    in 
diameter   in   his   abdomen,   where   there   is 
nothing    from    which    self-destruction    can 
be  inferred,  and  the  size  of  the  wound  indi- 
cates that  the  injury  was  caused  by  some 
unknown    happening1.      De    Fazio    v.    Gold- 
schmidt  Detinning  Co.    (1913)   —  N.  J.  L. 
— ,  88  Atl.  705,  4  N.  C.  C.  A.  716. 

Proof  of  apparent  previous  good  health, 
a  heavy  and  unusual  lift  in  the  course  of 
work,  discovery  of  rupture  on  the  second 


232 


WORKMEN'S  COMPENSATION. 


Whether  or  not  the  injury  was  caused 
by  "accident"  is  generally  considered  to 
be  a  question  of  fact;  and  the  findings 
of  the  Commission  or  trial  court  will  not 
be  disturbed  if  there  is  some  evidence  to 
support  such  finding.62  But  it  has  been 
said  that  the  question  whether  or  not 
the  injury  to  the  employee  is  an  accident 
within  the  purview  of  §  2  of  the  New 
Jersey  act  is  a  mixed  question  of  law 
and  fact ;  when  applied  to  a  certain  state 
of  facts,  it  is  a  question  of  law.63 

XXXIII.  Injuries    "arising   out   of  and 
in  the  course  of"  the  employment. 

For  the  English  decisions  construing 
this  phrase,  see  ante,  40. 

Practically  all  of  the  American  stat- 
utes provide  compensation  in  case  of 
"injury"  or  "injury  by  accident"  "aris- 
ing out  of  and  in  the  course  of  the  em- 
ployment." This  phrase  is  borrowed 


from  the  English  workmen's  compensa- 
tion act.64 

The  terms  "out  of"  and  "in  the  course 
of"  are  not  synonymous,65  and  if  either 
of  these  elements  is  missing,  there  can  be 
no  recovery.66  The  two  questions  are  to 
be  determined  by  different  tests.67  The 
words  "out  of"  refer  to  the  origin  or 
cause  of  the  accident,  and  the  words 
"in  the  course  of"  to  the  time,  place, 
and  circumstances  under  which  it  oc- 
curred.68 So  it  has  been  said  that  an 
injury  which  occurs  while  an  employee 
is  doing  what  he  might  reasonably  do 
at  the  time  and  place  is  one  which  arises 
"out  of  and  in  the  course  of  the  employ- 
ment." • 

It  has  been  said  that  under  the  New 
Jersey  act  an  accident  which  is  the  re- 
sult of  a  risk  reasonably  incident  to 
the  employment  is  an  accident  arising 
out  of  the  employment,70  and  that  the 
injuries  for  which  compensation  is  to 
be  paid  under  the  Wisconsin  act  are  such 


day  thereafter,  death  from  surgical  opera- 
tion for  relief  thereof,  and  the  opinion  of 
the  operating  surgeon  that  the  rupture  was 
caused  by  the  lifting,  is  sufficient  to  estab- 
lish accidental  injury  in  the  course  of  em- 
ployment within  the  meaning  of  the  West 
Virginia  act.  Poccardi  v.  Public  Service 
Commission  (1915)  — ,W.  Va.  — ,  post,  299, 
84  S.  E.  242. 

The  Industrial  Commission  is  justified  in 
indulging  the  presumption  that  a  workman 
whose  body  was  found  in  a  river  did  not 
commit  suicide.  Milwaukee  Western  Fuel 
Co.  v.  Industrial  Commission,  159  Wis.  635, 
150  N.  W.  998. 

Where,  by  an  agreement  between  an  em- 
ployer and  an  employee,  it  was  stated  that 
the  injury  to  the  employee's  right  eye 
was  caused  by  molten  iron  being  splashed 
into  it,  causing  a  bad  burn,  the  employer 
is  estopped  from  subsequently  claiming  that 
the  defect  in  the  eye  at  the  time  of  the 
order  approving  the  agreement  was  the  re- 
sult of  senile  cataract.  Spooner  v.  Beck- 
with  (1914)  183  Mich.  323,  149  N.  W.  971. 

62  The    findings   by   the   Industrial    Acci- 
dent Board,  upon  a  petition  to  review,  will 
not  be  reversed  unless  the  petitioners  have 
conclusively  shown  by  their   evidence  that 
the  injury  to  the  employee's  eye  was  caused 
by  senile  cataract,  and  not  by  traumatism. 
(Mich.)  Ibid. 

63  Bryant   v.   Fissell    (1913)    84   N.   J.  L. 
72,  86  Atl.  458,  3  N.  C.  C.  A.  585. 

64  The  language  of  the  New  Jersey  act  of 
1911  with  reference  to  the  recovery  of  com- 
pensation where  an  employee  is  injured  by 
accident  arising  out  of  and  in  the  course  of 
his  employment  is  identical  with  the  lan- 
guage of  the  British  workman's  compensa- 
tion act  of  1906,  and  therefore  cases  in  that 
jurisdiction,  construing  the  language  in  that 
act,  will  be  useful  in  construing  the  same 
language   in   the  New  Jersey  act.     Bryant 
L.R.A.1916A. 


v.  Fissell  (1913)  84  N.  J.  L.  72,  86  Atl.  458, 
3  N.  C.  C  A.  585. 

65  "An  injury  may  be  received  in  the 
course  of  the  employment  and  still  have  no 
causal  connection  with  it,  so  that  it  can  be 
said  to  arise  out  of  the  employment." 
State  ex  rel.  Duluth  Brewing  &  Malting  Co. 
v.  District  Ct.  (1915)  129  Minn.  176,  151  N. 
W.  912. 

66McNicol's  Case  (1913)  215  Mass.  497, 
post,  306,  102  N.  E.  697,  4  N.  C.  C.  A.  522; 
Bryant  v.  Fissell  (N.  J.)  supra. 

67  Hopkins  v.  Michigan  Sugar  Co.  (1915) 
—  Mich.  — ,  post,  310,  150  N.  W.  325. 

68  Hills  v.  Blair  (1914)   182  Mich.  20,  148 
N.  W.  243,  7  N.  C.  C.  A.  409;   Hopkins  v. 
Michigan  Sugar  Co.  (Mich.)  supra. 

69  Scott  v.  Payne  Bros.  (1914)  85  N.  J.  L. 
446,  89  Atl.  927,  4  N.  C.  C.  A.  682. 

An  accident  arises  "in  the  course  of  the 
employment"  if  it  occurs  while  the  employ- 
ee is  doing  what  a  man  so  employed  may 
reasonably  do  in  the  time  during  which  he 
is  reasonably  employed,  and  at  a  place 
where  he  may  reasonably  be  during  that 
time;  and  it  arises  "out  of"  the  employ- 
ment when  it  is  something  the  risk  of 
which  may  have  been  contemplated  by  a 
reasonable  person  when  entering  the  em- 
ployment as  incidental  thereto.  Bryant  v. 
Fissell  (N.  J.)  supra. 

"It  is  sufficient  to  say  that  an  injury  is 
received-  'in  the  course  of  the  employment, 
when  it  comes  while  the  workman  is  doing 
the  duty  which  he  is  employed  to  perform. 
It  'arises  out  of  the  employment  when 
there  is  apparent  to  the  rational  mind,  up- 
on consideration  of  all  the  circumstances, 
a  causal  connection  between  the  conditions 
under  which  the  work  is  required  to  be 
performed  and  the  resulting  injury."  Mc- 
Nicol's  Case  (Mass.)  supra. 

TOHulley  v.  Moosbrugger  (1915)  —  N.  J. 
L.  — ,  93  Atl.  79. 


INJURIES  IN  COURSE  OF  EMPLOYMENT. 


233 


as  are  incident  to  and  grow  out  of  the 
employment.71 

A  risk  may  be  incidental  to  the  em- 
ployment when  it  is  either  an  ordinary 
risk  directly  connected  with  the  employ- 
ment, or  extraordinary  risk  which  is 
only  indirectly  connected  with  the  em- 
ployment owing  to  the  special  nature 
of  the  employment.72  If  a  locomotive 
engineer  who  slipped  while  standing  on 
an  apron  of  metal  between  the  engine 
and  the  tender,  fell  because  the  apron 
was  smooth  and  unsteady,  then  his  fall 
is  clearly  the  result  of  a  hazard  incident 
to  his  employment,  and  is  an  industrial 
accident  for  which  indemnity  may  be 
recovered  under  the  provisions  of  the 
workmen's  compensation  act.73  The  ac- 
cidental drowning  of  an  employee,  or  his 
fall  onto  the  rocks  in  the  river  bed 
while  engaged  in  the  duty  of  clearing 
debris  from  the  rack  protecting  the 
flume  which  carries  the  water  from  the 
dam  to  the  mill  in  which  he  is  employed, 
is  within  the  New  Hampshire  act.74 

Whether  or  not  the  injury  is  one  "aris- 
ing out  of  and  in  the  course  of  the  em- 
ployment" within  the  meaning  of  the 


compensation  act  is  not  to  be  determined 
by  the  common-law  rules  in  negligence 
cases.75 

That  the  injury  was  caused  by  the 
negligence  of  a  fellow  servant  is  not  a 
defense  to  proceedings  for  the  recovery 
of  compensation;  consequently  it  has 
been  held  that  the  disobedience  by  a  fel- 
low workman  of  orders  is  as  much  one 
of  the  risks  of  a  man's  employment  as  a 
defect  in  the  mechanical  appliances.76 
So,  too,  compensation  is  recoverable  al- 
though the  injuries  were  caused  by  the 
negligence  of  third  persons.77 

In  order  that  an  injury  or  accident 
should  "arise  out  of  and  in  the  course 
of"  the  employment,  it  is  not  necessary 
that  it  should  be  one  reasonably  to  be 
anticipated  as  an  incident  of  the  employ- 
ment.78 

Risks  to  which  all  persons,  whether 
in  the  employment  or  not,  are  subject, 
cannot  be  said  to  be  incidental  to  the 
employment.  Thus,  injuries  caused  by 
slipping  on  the  street  while  going  from 
one  place  to  another  are  not  within  the 
protection  of  a  statute.79 

In  one  case  it  has  been  held  that  com- 


71  Hoenig  v.  Industrial  Commission  (1915) 
159  Wis.  646,  post,  339,  150  N.  W.  996,  8 
N.  C.  C.  A.  192. 

72  Bryant   v.   Fissell    (1913)    84   N.   J.   L. 
72,  86  Atl.  458,  3  N.  C.  C.  A.  585. 

73  Milwaukee  Coke   &  Gas  Co.  v.   Indus- 
trial Commission  (1915)   160  Wis.  247,  151 
N.  W.  245. 

7*Boody  v.  K.  &  C.  Mfg.  Co.  (1914)  77 
N.  H.  208,  ante,  10,  90  Atl.  860,  Ann.  Gas. 
1914D,  1280. 

75  The  fact  that,  before  the  passage  of 
the   workmen's   compensation   act,   an   em- 
ployee in  a  shop  could  not  recover  from  her 
employers   for   injury   received   while   on   a 
stairway    in   the   building,   which    was   not 
controlled    by   her    employers,    is    not   con- 
trolling in   proceedings   brought  under   the 
compensation  act,  since  one  of  the  very  pur- 
poses of  the  act  was  to  increase  the  right 
of  employees  to  be  compensated  for   inju- 
ries growing  out  of  their  employment.  Sun- 
dine's  Case   (1914)   218  Mass.  1,  post,  318, 
105  N.  E.  433,  5  N.  C.  C.  A.  616. 

76  A  petitioner  who,  with  two  others,  was 
pulling  on  a  hand  chain  connected  with  a 
block  operating  a  mechanism  which  caused 
a  lifting  chain  to  pass  through   the   block 
and  lift  a  steel  girder,  and  who  was  injured 
by  the  lift  chain  becoming  blocked  and  split- 
ting the  block,  was  injured  by  accident  aris- 
ing out  of  and  in  the  course  of  the  employ- 
ment, although  the   injury   was  caused   by 
the    disobedience    of    fellow    workmen    in 
continuing  to  pull  on  the  chain  after  they 
had  Leen  directed  by  the  foreman  to  stop. 
Scott  v.   Payne  Bros.    (1914)    85   N.  J.  L. 
446,  89  Atl.  927,  4  N.  C.  C.  A.  682. 

77  The  New  Jersey  act  nowhere  provides 
specifically  or  by   implication  that  an   em- 
L.R.A.1916A. 


ployee  shall  be  deprived  of  his  right  to 
compensation  thereunder,  merely  because 
the  accident  gives  rise  to  a  right  of  recovery 
against  the  third  person.  Bryant  v.  Fissell 
(N.  J.)  supra. 

78  Under   the   compensation    act   it   is   of 
no  significance  whether  the  prescribed  phys- 
ical harm  was  natural  and  probable,  or  the 
abnormal   or   inconceivable    consequence    of 
the  employment,  the  only  inquiry  is  whether 
in  truth  it  did  arise  out  of  and  in  the  course 
of  that  employment.     If  death  ensues,  it  is 
immaterial  whether   it   was  the  reasonable 
and   likely  consequence   or  not.     The   only 
question  is  whether  in  fact  death  "results 
from  the  injury."     Sponatski's  Case  (1915) 
220  Mass.  526,  post,  333,  108  N.  E.  466,  8  N. 
C.  C.  A.  1025. 

79  An    employee    of    a    sugar    company, 
whose  duty  required  him  to  inspect  plants 
in  different  places,  is  not,  after  his  return 
from  a  tour  of  inspection  to  his  own  city, 
within    his    employment    when    injured    by 
slipping  upon  the  ice  while  running  to  get 
a  street  car  to  return  to  his  home,  so  as  to 
render  his  employers  liable  to  compensation, 
since  the  danger  of  slipping  upon  the  street 
is  not  a  hazard  incidental  to  the  employment 
of  those  who  are  called  upon  to  make  jour- 
neys between   towns  on  business  missions. 
Hopkins  v.   Michigan   Sugar  Co.    (1915)   — 
Mich.  — ,  post,* 310,  150  N.  W.  325. 

In  Milwaukee  v.  Althoff  (1914)  156  Wis. 
68,  post,  327,  145  N.  W.  238,  4  N.  C.  C.  A. 
110,  compensation  was  allowed  for  the 
death  of  an  employee  caused  by  injuries 
received  while  going  from  the  place  where 
he  received  orders  to  the  place  where  he 
was  to  work,  which  injuries  were  caused 
by  his  falling  on  the  street  and  injuring 


234 


WORKMEN'S  COMPENSATION. 


pensation  is  recoverable  where  the  duty 
which  the  employee  was  performing  was 
owed  by  him  to  others  as  well  as  to  his 
master.80  It  is  the  work  which  the 
workman  is  doing  at  the  time  of  his 
injury  that  determines  whether  or  not 
his  injury  arises  out  of  and  in  the  course 
of  the  employment,  and  not  what  he  is 
about  to  do  after  the  completion  of  the 
task  in  hand.81 

Injuries  self-inflicted  or  otherwise, 
suffered  by  an  employee  because  of  a 
derangement  of  his  mind,  arise  "out  of 
and  in  the  course  of  his  employment" 
where  his  mental  aberration  is  caused  by 


an  injury  which  arose  out  of  and  in 
the  course  of  the  employment.82  But  if 
the  injury  for  which  compensation  is 
sought  was  caused  by  his  mental  con- 
dition which  was  not  in  any  way  the 
result  of  his  employment,  then  no  com- 
pensation is  recoverable,  although  the 
injury  arose  in  the  course  of  the  employ- 
ment.83 

An  employee  is  not  entitled  to  com- 
pensation for  the  loss  of  an  eye  al- 
though several  pieces  of  steel  lodged  in 
it  while  he  was  at  work  at  a  lathe, 
where  the  loss  of  the  eye  was  immedi- 
ately caused  by  rubbing  the  eye  with 


his  knee.  From  the  language  used  by  the 
court,  however,  it  is  apparent  that  the 
court  decided  that  such  injuries  were  re- 
ceived "in  the  course  of"  the  employment, 
and  it  does  not  appear  that  the  court  de- 
termined the  further  question  whether  they 
arose  "out  of"  the  employment. 

An  injury  to  a  motorman  who  had  closed 
his  day's  work  and  had  signed  his  name  to 
the  register  denoting  that  fact,  and  who 
was  injured  while  on  the  public  street  on 
his  way  to  have  his  watch  tested,  by  being 
run  down  by  an  automobile  not  under  the 
control  of  the  employer,  does  not  arise  out 
of  and  in  the  course  of  his  employment. 
De  Voe  v.  New  York  State  R.  Co.  (1915)  — 
App.  Div.  — ,  155  N.  Y.  Supp.  12. 

There  can  be  no  compensation  for  the 
death  of  a  workman,  caused  by  falling  on  a 
pail  of  broken  glass  while  he  was  walking 
along  the  street,  delivering  meat  from  his 
employer's  shop,  although  his  usual  occu- 
pation was  a  hazardous  one  within  the 
meaning  of  the  New  York  statute.  New- 
man v.  Newman  (1915)  --  App.  Div.  — , 
155,  N.  Y.  Supp.  665. 

But  a  truck  driver's  helper,  who,  in  order 
to  drive  away  some  boys  who  were  hang- 
ing on  the  rear  of  a  truck,  jumped  off  the 
truck,  and,  in  doing  so,  fell  to  the  pavement, 
fracturing  his  skull,  suffered  injury  by 
accident  arising  out  of  and  in  the  course 
of  his  employment.  Hendricks  v.  Seeman 
(1915)  --  App.  Div.  — ,  155  N.  Y.  Supp. 
638. 

80  Injuries  caused  by  being  drenched  with 
water  and  saturated  with  smoke,  received 
by  an  employee  in  charge  of  his  employer's 
volunteer  fire  brigade  while  assisting  in  ex- 
tinguishing a  fire  in  a  garage,  situated  but 
40  feet  distant  from  his  employer's  premis- 
es, may  be  found  to  "arise  out  of"  the  em- 
ployment, where  the  workman  entered  the 
burning  garage  with  the  employer's  chemi- 
cal engine  before  the  arrival  of  the  town 
apparatus,  although  he  subsequently  worked 
in  connection  with  the  fire  apparatus  of  the 
town.  Re  McPhee  (1915)  —  Mass.  — ,  109 
N.  E.  633.  The  court  said:  "While  the  de- 
ceased was  a  member  of  the  town  fire  de- 
partment, and  as  such  required  to  attend 
the  fire,  it  well  might  be  that  his  para- 
mount duty  was  owed  to  the  subscriber  to 
protect  its  property  from  destruction  by 
L.R.A.1916A. 


fire  and  to  prevent  thereby  a  panic  among 
its  patrons  and  the  disaster  which  might 
ensue.  It  does  not  seem  to  us  pos- 
sible to  say  as  matter  of  law  that  when 
he  had  exhausted  the  chemical  of  the  sub- 
scriber and  begun  working  in  connection 
with  the  fire  apparatus  of  the  town,  he 
ceased  acting  primarily  in  the  interests  of 
his  employer,  who  was  the  subscriber,  and 
began  working  exclusively  for  the  town." 

81  A  workman  employed  to  drive  a  horse 
and  a  cart  is  not  outside  of  his  employment 
while    driving    the    horse    to    a    watering 
trough,  as  it  was  his  duty  to  do,  although, 
after  the  horse  had   been   watered,   he   in- 
tended   to    use    it    for    his    own    purposes. 
Pigeon's  Case  (1913)   216  Mass.  51,  102  N. 
E.  932,  Ann.  Cas.  1915A,  737.     The  court 
said:      "Though   he   may   have  had   at  the 
same    time    the    purpose    to    do    something 
else   not   within   the   scope   of   his   employ- 
ment, after  watering  the  horse,  that   fact 
does  not  prevent  the  service  actually  ren- 
dered  at    the   moment    from    being   in   the 
course  of  his  employment.     His  custody  of 
the  horse  for  the  purpose  of  relieving  his 
thirst  was  in  the  performance  of  the  busi- 
ness of  his  general  employer.     His  service 
in    doing    this    was    not    destroyed    by    his 
unexecuted  intention  to  abandon  his   mas- 
ter's  business   after   performing   this   duty 
and  to  take  the  horse  for  his  own  conven- 
ience on  a  journey  of  his  own." 

82  Compensation  is  recoverable  under  the 
workmen's  compensation  act  for  death  of  a 
workman  by  throwing  himself  from  a  win- 
dow as  a  result  of  injuries  arising  out  of 
and  in  the  course  of  his  employment  which 
deranged  his  mind  so  as  to  create  an  irre- 
sistible  impulse   to   commit   the   act  which 
caused  his  death.     Sponatski's  Case   (1915) 
220  Mass.  526,  post,  333,  108  N.  E.  466,  8  N. 
C.  C.  A.  1025. 

83  Pneumonia,  contracted  by  an  employee 
who,  because  of  prior  injury,  suffered  a  loss 
of  memory  while  in  charge  of  his  master's 
team    and,  in  attempting  to  get  the  horses 
to  the  stable,  wandered  from  the  wagon  in- 
to a  swamp,  and  suffered  exposure  di"-Ing 
the  night,  is  not  an  injury  "arising  out  of" 
his  employment  within  the  meaning  of  the 
act.     Milliken's  Case  (1914)   216  Mass.  293, 
post,  337,  103  N.  E.  898,  4  N.  C.  C.  A.  512. 


INJURIES  IN  COURSE  OF  EMPLOYMENT. 


235 


his  hand  infected  with  an  infectious 
disease  from  which  he  was  suffering  at 
the  time  of  the  injury.84 

As  a  general  rule,  accidents  which  be- 
fall an  employee  while  going  to  or  from 
his  work  are  not  to  be  regarded  as  in 
the  course  of  or  arising  out  of  his  em- 
ployment.85 But  undoubtedly  such  ac- 
cident might  be  brought  within  the  scope 
of  the  employment  by  the  terms  of  the 
contract  of  employment.86  It  has  been 
held  that  where  an  employee  is  injured 
while  traveling  to  or  from  his  work  in 
a,  vehicle  provided  by  the  employer,  the 
latter's  liability  depends  upon  whether 
the  conveyance  has  been  provided  by 
him  after  the  real  beginning  of  the  em- 
ployment, in  compliance  with  one  of 


the  implied  or  express  terms  of  the  con- 
tract of  the  employment,  for  the  mere 
use  of  the  employee,  and  is  one  which 
the  employees  are  required,  or,  as  a  mat- 
ter of  right,  are  permitted,  to  use  by 
virtue  of  that  contract.87 

It  is  not  necessary,  however,  that  the 
hour  of  work  shall  have  arrived  and  that 
the  work  shall  have  been  actually 
begun.88  On  the  one  hand  it  has  been 
held  that  it  is  not  a  sufficient  test  that 
the  workman  should  be  on  the  premises 
of  the  employer,89  while,  on  the  other 
hand,  the  circumstance  that  the  deceased 
employee  was  not  upon  the  estate  of  his 
employer  at  the  time  of  receiving  his 
injury  has  been  said  to  be  of  slight 
significance.90  An  employee  in  a  shop 


84  McCoy  v.   Michigan   Screw   Co.    (1914) 
180  Mich.  454,  post,  323,  147  N.  W.  572,  5 
N.  C.  C.  A.  455. 

In  connection  with  this  case,  see  Voelz 
v.  Industrial  Commission  (1915)  -  -  Wis. 
— ,  152  N.  W.  830,  cited  in  note  22,  infra. 

85  Hills  v.  Blair  (1914)   182  Mich.  20,  148 
N   W.  243,  7  N.  C.  C.  A.  409. 

86  An   injury  incurred  by  a  workman  in 
the  course  of  his  travel  to  his  place  of  work, 
and  not  on  the  premises  of  the  employer, 
•does  not  give  right  to  participation  in  the 
compensation  fund,  unless  the  place  of  in- 
jury was  brought  in  the  scope  of  employ- 
ment by  an  express  or  implied  requirement 
in  the  contract  of  employment  of  its  use  by 
the  servant  in  going  to  and  returning  from 
his  work.     De  Constantin  v.  Public  Service 
€ommission  (1914)  —  W.  Va.  — ,  post,  329, 
83  S.  E.  88.     In  denying  compensation,  the 
court  said:     "If  it  had  been  shown  that  the 
decedent,  approaching  his  place  of  work  by 
the  only  means  of  access  thereto,  was  al- 
most  within   the   reach   of   it   at   the   time 
•of  his  injury,  some  of  the  authorities  relied 
upon   might   justify   the    allowance    of   the 
claim;   for  the  employment   is  not   limited 
to  the  exact  moment  of  arrival  at  the  place 
of  actual  work,  nor  to  the  moment  of  re- 
tirement therefrom.     It  includes  a  reason- 
able amount  of  time  before  and  after  actual 
work.     .     .     .     But,  oh  the  contrary,  if  the 
employee  at  the  time  of  the  injury  has  gone 
beyond  the  premises  of  the  employer,  or  has 
not  reached  them,  and  has  chosen  his  own 
place  or  mode  of  travel,  the  injury  does  not 
arise  out  of  his  employment,  nor  is  it  in 
the  scope  thereof." 

Where  an  employee  was  killed  on  return- 
ing home  at  the  close  of  a  day's  work,  upon 
a  railroad  track,  where  he  was  struck  by  a 
train,  the  employer  is  not  liable  for  com- 
pensation, where  the  contract  of  employ- 
ment did  not  provide  for  transportation 
or  that  he  should  be  paid  for  the  time  taken 
in  going  and  returning  to  his  place  of  em- 
ployment, and  it  appeared  that  when  the 
day's  work  had  ended  the  employee  was  free 
to  do  as  he  pleased.  Fumiciello's  Case 
(1914)  219  Mass.  488,  107  N.  E.  349. 

87  Where   a    workman    was   employed    to 
I",.R.A.1916A. 


clean  out  catch  basins  at  a  place  about  2 
miles  distance  from  his  home,  and  was  in- 
jured while  riding  home  on  a  wagon  fur- 
nished by  the  employer,  he  is  entitled  to 
compensation  where,  with  the  knowledge 
and  consent  of  the  employer,  the  workman, 
together  with  other  employees,  was  accus- 
tomed to  ride  to  and  from  the  vicinity  of 
the  catch  basin  in  a  wagon  furnished  by  the 
employer,  the  wagon  meeting  the  employees 
on  the  street,  and  the  employer  being  noti- 
fied if  any  of  the  employees  failed  to  re- 
port for  work  at  the  beginning  of  the  day, 
and  the  wagon  was  at  the  service  of  the 
employees  at  the  end  of  the  day,  and  they 
might  ride  back  in  it  to  the  employer's 
barn  if  they  wished.  Donovan's  Case  (1914) 
217  Mass.  76,  104  N.  E.  431,  Ann.  Cas. 
1915C,  778,  4  N.  C.  C.  A.  549. 

88  In  applying  the  general  rule  that  the 
period  of  going  to  and  returning  from  work 
is    not    covered    by    the    act,    it    is    to    be 
remembered  that  employment  is  not  limited 
by  the  exact  time  when  the  workman  reach- 
es   the    scene   of   his   labor   and   begins    it, 
nor  when  it  ceases,  but  includes  a  reason- 
able   time,    space,    and    opportunity    before 
and  after,  while  he  is  at  or  near  his  place 
of  employment.     Hills  v.  Blair   (1914)    182 
Mich.  20,  148  N.  W.  243,  7  N.  C.  C.  A.  409. 

An  injury  to  a  city  employee,  who,  after 
reporting  according  to  custom  for  instruc- 
tions as  to  where  he  is  to  work  during 
the  day,  falls  on  the  sidewalk  while  on  his 
way  toward  such  place,  grows  out  of  and  is 
incidental  to  his  employment  within  the 
meaning  of  the  Wisconsin  act,  although  the 
accident  occurs  before  the  hours  when  his 
regular  duties  for  the  day  begin.  Mil- 
waukee v.  Althoff  (1914)  156  Wis.  68,  post, 
327,  145  N.  W.  238,  4  N.  C.  C.  A.  110. 

89  Hills  v.  Blair   (Mich.)    supra. 

90  Injuries  caused  by  inhaling  smoke  and 
by  being  drenched  with  water  may  be  found 
to  have  been  received  "in  the  course  of"  the 
employment  of   a  workman   who   was   em- 
ployed as  a  superintendent  of  an  amusement 
park,  and  was  in  charge  of  his  employer's 
volunteer    fire    brigade,    and    was    also    a 
member  of  the  town   fire  department,  and 
received  the  injuries  while  assisting  to  ex- 


236 


WORKMEN'S  COMPENSATION. 


may  recover  for  injuries  received  on  a 
stairway,  although  her  employer  did  not 
have  control  of  the  stairway,  which  was 
under  the  control  of  the  owner  of  the 
building.91 

An  employee  sent  to  repair  water 
mains  between  the  tracks  of  a  railroad 
is  not  outside  of  his  employment  in  go- 
ing to  a  hand  car  ten  steps  away  to  put 
on  rubber  boots,  where  that  was  the 
only  place  except  the  ground  that  he 
could  sit  on  in  order  to  put  on  boots 
and  he  had  been  told  to  bring  the  boots 
with  him,  and  he  could  perform  his 
work  better  when  wearing  them.91a 

That  an  injury  should  arise  "out  of 
and  in  the  course  of  the  employment,"  it 
is  not  necessary  that  the  employee  be 

tinguish  a  fire  in  a  garage,  situated  but  40 
feet  distant  from  his  employer's  premises, 
although,  after  the  employer's  chemical 
engine  gave  out,  he  began  working  in  con- 
nection with  the  fire  apparatus  of  the  town 
department.  Re  McPhee  (1915)  —  Mass. 
— ,  109  N.  E.  633. 

The  relation  of  master  and  servant  may 
extend  beyond  the  hours  the  servant  is 
actually  required  to  labor,  and  in  some 
instances  to  places  other  than  the  premises 
where  the  servant  is  employed.  Milwaukee 
v.  Althoff  (Wis.)  supra. 

91  An    injury    to    one    employed    by    the 
week,   while   leaving   the   premises   for   the 
purpose  of  procuring  a  luncheon,  by  means 
of  stairs  which  are  not  under  the  employ- 
er's control,  but  afford  the  only  means  of 
going  to  and  from  the  workroom,  arises  out 
of  and   in   the   course   of   the   employment. 
Sundine's   Case    (1914)    218   Mass.   1,   post, 
318,  105  N.-  E.  433,  5  N.  C.  C.  A.  616. 

9la  Brown  v.  Decatur  (1914)  188  111.  App. 
147. 

92  Employment    within    the    meaning    of 
the   statute   refers   rather   to   the   contract 
than  to  the  labor  done  in  pursuance  of  the 
contract,  and  an  employee  does  not  cease 
to  be   an   employee  because  of  certain   in- 
stants of  time  he  is  not  actually  engaged 
in  work.     Scott  v.  Pavne  Bros.    (1914)    85 
N.  J.  L.  446,  89  Atl.  927,  4  N.  C.  C.  A.  682. 

93  An  employee  engaged  in  dumping  hot 
iron    briquettes    from    cars    running    unat- 
tended    from     the     mills    into    the    yards, 
whose    duty    involved    periods    of    leisure 
during     which     he     apparently     was     ex- 
pected   to    kill    time    as    best    he    might, 
with     no     specific     direction     as     to     what 
he  should  do  or  where  he  should  wait,  does 
not  go  out  of  his  employment  when,  upon 
a   cold   night   he   put   off   dumping  the   car 
until  he  could  warm  himself  from  its  heated 
contents.     Northwestern  Iron  Co.  v.  Indus- 
trial Commission   (1915)   160  Wis.  633,  152 
N,  W.  416.     The  court  said:     "To  protect 
himself  from  undue  and  unnecessary  expo- 
sures to  the  cold  was  a  duty  he  owed  his 
master  as  well  as  himself,  and  it  does  not 
follow  that  he  left  his  master's  employment 
because  he  negligently  allowed  a  second  car 
L.R.A.1916A 


actively  employed  at  the  time  of  the 
injury.92  Thus,  a  workman  exposed  to 
severe  weather,  and  injured  while  worm- 
ing himself,  may  be  found  to  have  been 
injured  by  accident  "arising  out  of  and 
in  the  course  of  his  employment."  93  So,, 
an  injury  may  be  found  to  "arise  out  of 
and  in  course  of"  the  employment  of  a 
workman,  where  it  is  received  while  he 
is  seeking  shelter  from  a  storm  and  at 
a  place  away  from  the  immediate  scene 
of  his  place  of  work.94  (But  see  the 
"lightning  cases"  cited  in  notes  18-20, 
infra.)  And  injuries  received  while  nec- 
essarily crossing  a  street  to  seek  toilet 
facilities  arise  "out  of  and  in  the  course 
of  the  employment." 95  So  an  employee 
in  a  factory  is  still  in  the  employ  of  the 

to  run  into  him  while  he  was  warming 
himself." 

94  A  lineman  who  seeks  shelter  from  the 
storm  under  some  cars  on  a  switch,  and  is 
injured    by    the    cars    being    moved    by    an 
engine   on   another   railroad,   is   injured   by 
accident    arising    out    of    his    employment, 

j  where  the  employer  furnished  no  shelter, 
'  but  left  each  man  to  find  shelter  as  he- 
could  in  the  storm,  and  made  no  deduction 
of  wages  for  the  interference  in  the  work. 
Moore  v.  Lehigh  Valley  R.  Co.  (1915)  169- 
App.  Div.  177,  154  N.  Y.  Supp.  620. 

95  Where  the  employer  failed  to  provide 
proper  toilet  facilities  for  employees  in  the 
building  where  they  were  at  work,  so  that 
they    were    obliged    to    and    did   habitually 
resort  for  such  facilities  during  the  working 
hours  to  another  building  of  the  employer 
which  lay  across  a  public  street,  and  which 
custom   persisted    for   a   considerable   timer 
and  as  the  court  was  entitled  to  find,  was 
therefore  known   and  consented  to  by  the 
employer,    a    workman    while    crossing    the 
street  in  working  hours  to  reach  the  toilet  in 
question,  who  was  struck  by  a  passing  ve- 
hicle, sustaining  injuries   which  caused  his 
death,  may  be  found  to  come  to  his  death 
by  accident  which  arose  out  of  and  in  the 
course  of  his  employment.    Zabriskie  v.  Erie 
R.  Co.  (1914)  86  N.  J.  L.  266,  post,  315,  92 
Atl.    385,    affirming   judgment    of    the    Su- 
preme Court,  85  N.  J.  L.  157,  88  Atl.  824, 
4   N.   C.   C.   A.    778.        The    supreme   court 
pointed  out  that  this  was  the   only  toilet 
provided  by  the  defendant,  and  that  it  wa& 
the  practice  of  the  operatives  in  the  shop 
where  the  deceased  was  at  work,  presump- 
tively with  the  knowledge  and  consent  of  the 
defendant,   to   temporarily   leave   their  em- 
ployment   when    the    necessity    arose,    and 
to    make    use    of    the    toilet    in    question. 
The   court   concluded   its   argument   as   fol- 
lows:     "Therefore   we  must  conclude  that 
it   was    within   the   contemplation    of   both 
parties    to   the   employment    that    such    an 
exigency   was   an   incident   which   ex  neces- 
sitate inhered  in  the  terms  of  the  contract^ 
and  for  the  damages  arising  out  of  which 
the    defendant    must    respond    within    the 

I  contemplation    of    the    statute." 


INJURIES  IN  COURSE  OF  EMPLOYMENT. 


237 


master  while  accepting  the  conveniences 
of  a  toilet  maintained  by  the  employ- 
er.95* Preparation  for  beginning  ac- 
tive employment,  after  the  place  of 
work  has  been  reached,  and  for  leav- 
ing the  premises  after  the  period  of  ac- 
tive employment  has  ended,  is  part  of 
the  employment.  Thus,  an  injury  to  an 
employee  by  collision  with  another  em- 
ployee hidden  from  view  by  an  obstruc- 
tion in  running  to  register  on  a  time 
clock,  which  he  was  required  to  do  be- 
fore leaving  the  building,  when  the  quit- 
ting signal  was  given,  arises  out  of  and 
in  the  course  of  his  employment.96  And 
a  factory  employee  who  quits  work  at 
her  machine  shortly  before  noon,  and  is, 
in  accordance  with  custom,  combing  par- 
ticles of  wool  out  of  her  hair  prepara- 
tory to  going  home,  when  her  hair  is 
caught  in  other  machinery  and  she  is 
injured,  suffers  injury  by  accident  aris- 
ing out  of  and  in  the  course  of  her  em- 
ployment.97 


An  employee  in  a  mill  is  not  outside 
the  scope  of  her  employment  in  going 
from  an  upstairs  room,  where  her  work 
had  run  out,  to  a  room  down  stairs, 
where  she  had  been  told  by  the  overseer 
that  there  was  work  for  her  to  do.98 
And  an  employee  by  the  week  in  a  shop 
does  not  go  outside  of  the  employment 
merely  because  she  leaves  the  shop  for 
the  purpose  of  getting  a  lunch.99  But 
the  Michigan  court  has  held  that  an 
employee  who  leaves  his  place  of  employ- 
ment to  go  home  to  his  lunch  is  going  on 
a  mission  of  his  own  merely  to  please 
himself,  and  that  injuries  incurred  while 
so  going  to  his  lunch  do  not  arise  out  of 
and  in  the  course  of  his  employment, 
although  at  the  time  they  occurred  the 
workman  is  still  upon  the  employer's 
premises.1 

In  one  case  it  has  been  held  that  an 
employee  on  a  vessel  does  not  necessar- 
ily abandon  his  employer's  service  in 
attempting  to  save  his  personal  effects 


95aDe  Filippis  v.  Falkenberg  (1915)  — 
App.  Div.  — ,  155  N.  Y.  Supp.  761. 

96Rayner  v.  Sligh  Furniture  Co.  (1014) 
180  Mich.  168,  ante,  22,  146  N.  W.  665,  4 
N.  C.  C.  A.  851. 

97Terlecki  v.  Strauss  (1914)  85  N.  J.  L. 
454,  89  Atl.  1023.  4  N.  C.  C.  A.  584.  affirmed 
in  86  N.  J.  L.  708,  92  Atl.  1087.  The  court 
said:  "The  preparation  reasonably  neces- 
sary for  beginning  work  after  the  employ- 
er's premises  are  reached,  and  for  leaving 
when  the  work  is  over,  is  a  part  of  the  em- 
ployment. A  workman  is  none  the  less  in 
the  course  of  his  employment  because  he  is 
engaged  in  changing  his  street  clothes  for 
his  working  clothes,  or  in  changing  his 
working  clothes  for  his  street  clothes.  In 
the  present  case  it  was  reasonably  neces- 
sary that  the  petitioner  should  comb  her 
hair  and  remove  the  particles  of  wool  before 
leaving  the  factory." 

98  Wheeler    v.     Contoocook     Mills     Corp. 
(1915)  —  N.  H.  — ,  94  Atl.  265.    , 

99  In    Sundine's    Case    (1914)    218    Mass. 
1,  post,  318,  105  N.  E.  433,  it  was  held  that 
a   girl   employed   in   a   shop   who   was   em- 
ployed by  the  week,  does  not  go  outside  of 
the  employment  merely  because  she  leaves 
the  shop  for  lunch.     The  court  said:     "The 
decisions  upon  similar  questions  under  the 
English  act  are  to  same  effect.     Blovelt  v. 
Sawyer  [1904]  1  K.  B.  (Eng.)  271,  73  L.  J. 
K.  B.  N.  S.  155,  68  J.  P.  110.  52  Week.  Rep. 
503,  89  L.  T.  N.  S.  658,  20  Times  L.  R.  105, 
which  went  on  the  ground  that  the  dinner 
hour,    though    not    paid    for,    was    yet    in- 
cluded in  the  time  of  employment.     Moore 
v.  Manchester  Liners    [1910]    A.  C.    (Eng.) 
498,  79  L.  J.  K.  B.  N.  S.  1175.  103  L.  T.  N. 
S.  226,  26  Times  L.  R.  618,  54  Sol.  Jo.  703, 
3   B.   W.   C.   C.    527.   where   the   House   of 
Lords  reversed  the  decision  of  the  court  of 
appeal,  reported  in   [1909]   1  K.  B.  417,  78 
L.   J.   K.   B.   N.    S.   463,   100   L.   T.   N.    S. 
164,  25  Times  L.  R.  202,  and  held,  follow- 
L.R.A.1916A. 


ing  the  dissenting  opinion  of  Moulton,  L.  J., 
that  a  temporary  absence  by  permission, 
though  apparently  of  longer  duration  than 
would  have  been  likely  in  the  case  before  us, 
did  not  suspend  the  employment,  and  that 
an  injury  occurring  during  such  a  tempor- 
ary absence  arose  'out  of  and  in  the  course 
of  the  employment.  Gane  v.  Norton  Hill 
Colliery  Co.  [1909]  2  K.  B.  (Eng.)  539,  78 
L.  J.  K.  B.  N.  S.  921,  100  L.  T.  N.  S.  979, 
25  Times  L.  R.  640,  2  B.  W.  C.  C.  42; 
Keenan  v.  Flemington  Coal  Co.  40  Scot.  L. 
R.  144,  5  Sc.  Sess.  Gas.  5th  Series,  164,  10 
Scot.  L.  T.  409;  MacKenzie  v.  Coltness  Iron 
Co.  41  Scot.  L.  R.  6." 

1  An  employee  who.  contrary  to  his  usual 
custom,  left  his  place  of  employment  and 
his  fellow  workman  at  the  noon  hour  to  go 
home  to  his  lunch,  because,  upon  this  oc- 
casion, he  had  failed  to  bring  with  him  his 
dinner,  as  was  customary  with  the  crew, 
and  as  he  had  always  done  before,  was  not, 
while  so  going  to  his  dinner,  in  the  em- 
ployment, although  at  the  time  of  his  in- 
jury, he  was  still  upon  his  employer's  premi- 
ses. Hills  v.  Blair  (1914)  182  Mich.  20, 
148  N.  W.  243,  7  N.  C.  C.  A.  409. 

8  Where  a  cook  on  a  lighter,  upon  the 
craft  beginning  to  sink,  made  several  trips 
to  and  from  the  deck  in  an  attempt  to  save 
some  of  his  clothes  and  other  belongings, 
and  accelerated  a  previously  existing  heart 
disease,  so  that  his  death  ensued,  his  de- 
pendents are  entitled  to  compensation,  as 
it  cannot  be  found  that  his  injury  arose 
outside  of  his  employment.  Brightman's 
Case  (1914)  220  Mass.  17,  post,  321,  107  N. 
E.  527,  8  N.  C.  C.  A.  102.  The  court  said 
that  the  standard  to  be  applied  is  not  that 
which  now,  in  the  light  of  all  that  has  hap- 
pened, is  deemed  to  have  been  directly 
within  the  line  of  labor  helpful  to  the  mas- 
ter, but  that  which  the  ordinary  man,  un- 
accustomed to  act  in  such  an  emergency, 


238 


WORKMEN'S  COMPENSATION. 


when  the  craft  began  to  sink.2  So,  an 
employee  is  not  outside  the  scope  of  his 
employment  while  attempting  to  rescue 
a  fellow  workman  from  a  danger  which 
has  arisen  out  of  the  latter's  employ- 
ment.3 

It  has  been  held  that  an  injury  to  an 
employee,  which  was  proximately  caused 
by  his  voluntary  intoxication,  does  not 
relieve  the  employer  from  liability  there- 
for under  the  Wisconsin  statute,  which 
makes  the  employer  liable  for  injury 
approximately  caused  by  accident,  and 
not  by  wilful  misconduct.4 

Additional  incapacity  caused  by  the 
failure  of  a  workman  to  take  proper  care 
of  himself  cannot  be  said  to  arise  "out 
of  and  in  the  course  of  the  employ-  j 
ment."  5  But  if  the  workman  has  proved 
the  liability  of  the  employer  and  the  re- 
sulting injuries  to  the  employee,  and  the 


defendant  claims  that  the  disability  has 
been  aggravated  and  a  cure  prevented  by 
the  neglect  of  the  employee,  the  employ- 
er must  show  those  facts  as  matters  of 
defense,  and  in  regard  to  those  questions 
it  is  proper  to  resolve  all  doubt  in  favor 
of  the  employee.6 

The  mere  fact  that  an  employee  was 
acting  negligently,7  or  in  violation  of  a 
rule,8  at  the  time  of  the  injury,  does  not 
prevent  the  injury  from  "arising  out  of 
and  in  the  course  of  the  employment" 
if  at  the  time  he  was  actually  doing  the 
work  for  which  he  was  employed.  And 
even  if  he  was  doing  something  for 
which  he  was  not  actually  employed, 
compensation  may  be  recovered  if  the 
employee  was  acting  in  an  honest  at- 
tempt to  further  the  master's  business,9 
particularly  if  the  act  in  question  was 
necessary'  in  order  that  his  own  work 


might  do  while  actuated  by  the  purpose  to 
do  his  duty. 

3  In  Dragovich  v.  Iroquois  Iron  Co. 
(1915)  —  111.  — ,  109  N.  E.  999,  it  was 
held  that  a  workman  does  not  go  out  of 
his  employment  in  attempting  to  rescue 
a  fellow  workman  who  has  fallen  into  a 
quantity  of  hot  water.  The  court  said: 
"It  is  the  duty  of  an  employer  to  save  the 
lives  of  his  employees  if  possible  when  they 
are  in  danger  while  in  his  employment,  and 
therefore  it  is  the  duty  of  a  workman  in 
his  employ,  when  occasion  presents  itself, 
to  do  what  he  can  to  save  the  lives  of  his 
fellow  employees,  when  all  are  at  the  time 
working  in  the  line  of  their  employment. 
Any  other  rule  of  law  would  be  not  only  in- 
human, but  unreasonable  and  uneconomical, 
and  would,  in  the  end,  result  in  financial  loss 
to  employers  on  account  of  the  injuries  to 
their  employees." 

*  Nekoosa-Edwards  Paper  Co.  v.  Indus- 
trial Commission  (1913)  154  Wis.  105,  post, 
348,  141  N.  W.  1013,  Ann.  Cas.  1915B,  995. 

5  The  aggravation  by  a  boxing  match  of 
a  wound  received  in  the  course  of  employ- 
ment,   which    had    practically    healed,    and 
would  have  caused  no  further  trouble  had 
it   been  given   a   little   more   rest,   so   that 
blood  poisoning  and  permanent  injury  to  a 
hand  result,  is  the  proximate  cause  of  such 
injury,  and  no  recovery  can  be  had  under 
a    workmen's    compensation    act    providing 
compensation    for   injuries    received    in   the 
course   of   employment.      Kill   v.   Industrial 
Commission    (19i5)    —   Wis.   — ,   ante,    14, 
152   N.   W.   148. 

An  additional  injury  caused  by  using 
an  injured  arm  too  soon  does  not  arise  out 
of  the  employment.  Pacific  Coast  Casualty 
Co.  v.  Pillsbury  (1915)  Cal.  153  Pac.  24. 

6  Corral   v.   William   H.   Hamlyn    &    Son 
(1915)  —  R.  I.  — ,  94  Atl.  877. 

7  A  carpenter  who  is  injured  by  attempt- 
ing to  descend  from  the  roof  of  a  building 
on  which  he  is  working,  by  means  of  a  loose 
rope,  one  end  of  which  is  held  in  the  hands 
of  a  fellow  workman,  instead  of  using  the 
ladder  provided  for  such  purposes,  receives 
L.R.A.1916A. 


injuries  arising  out  of  and  in  the  course  of 
his  employment.  Clem  v.  Chalmers  Motor 
Co.  (1914)  178  Mich.  340,  post,  352,  144  N. 
W.  848,  4  N.  C.  C.  A.  876. 

8  A   principal   of   a   school,   charged   with 
the  duty  of  holding  test  exercises  for  the 
purpose  of  selecting  a  basket  ball  team,  is 
performing   a   service  growing   out   of   and 
incidental    to   his    employment    even    if   he 
held  such  exercises  during  the  school  hours, 
and   the  rules  of  the   school  board  require 
such   exercises  to   be  held  at   recess.     Mil- 
waukee v.  Industrial  Commission  (1915)  160 
Wis.  238,  151  N.  W.  247. 

9  A  workman  in  the  bottling  house  of  a 
brewery,  who   was  charged   with   the   duty 
of    replacing    broken    electric    light    bulb's, 
and  who,   whenever  a  bulb  was  to  be  re- 
placed,  was  obliged   to  go  to   the  foreman 
to  procure  a  key  to  unlock  the  screen  cover 
protecting  the  bulb,  may  be  found  to  suffer 
a  personal  injury  "caused  by  accident  aris- 
ing out   of   and   in   the   course   of   his   em- 
ployment,"  where   he   was   injured   by   the 
explosion  of  a  dynamite  cap,  supposed  by 
him  to  be  an  empty  shell,  out  of  which  he 
was  attempting  to  make  for  himself  a  key 
to  unlock  the  screen  covers,  so  as  to  save 
the  time   and  energy   spent  in  hunting  up 
the  foreman,  and  carrying  the  key  back  and 
forth  whenever  a  broken  bulb  was  to  be  re- 
placed.     State   ex   rel.    Duluth    Brewing   & 
Malting  Co.  v.  District  Ct.  (1915)  129  Minn. 
176,  151  N.  W.  912.     The  court  said:     "The 
trial    court    evidently    took    the   view    that 
De  Cook  in  good  faith  believed  he  was  fur- 
thering his  master's  business  and  perform- 
ing an  act  which   he  might  reasonably  be 
expected  to  do  when  he  undertook  to  sup- 
ply himself  with  a  key.    He  had  never  been 
told  that  the  light  bulbs  w/are  to  be  under 
lock  as  to  him  who  was  charged  with  the 
duty  of  seeing  that  the  broken  and  defec- 
tive ones  were  replaced.     He  had  a  variety 
of  matters  to  attend  to,  in  which  he,  like 
servants    generally,    had    to    rely    on    the 
promptings    of    his    own    judgment    as    to 
details.    Undesirable,  indifferent,  and  of  lit- 
the  value,  indeed,  are  the  services  of  an  em- 


INJURIES  IN  COURSE  OF  EMPLOYMENT. 


239 


might  progress.10  But  if  the  negligent 
or  disobedient  act  was  performed  sole- 
ly for  his  own  purpose,  or  if  he  under- 
takes to  perform  work  he  was  not 
employed  to  do,  merely  for  his  own  pur- 
pose or  for  the  benefit  of  third  persons, 
and  not  to  further  the  master's  business, 
no  recovery  is  allowable.11 

Injuries  received  while  acting  direct- 
ly under  the  express  orders  of  the  supe- 
rior arise  "out  of  and  in  the  course  of" 
the  employment.12 

Ordinarily  assault  by  third  persons 
cannot  be  considered  as  incidental  to 


the  employment.  But  where  the  as- 
sault is  one  which  might  be  reasonably 
anticipated  because  of  the  general  char- 
acter of  the  work,  or  of  the  particular 
duties  imposed  upon  the  workman,  in- 
juries resulting  therefrom  may  be  found 
to  arise  out  of  and  in  the  course  of  the 
employment.  As,  for  instance,  where 
a  workman  was  obliged  to  work  beside 
an  intoxicated  fellow  workman,  who,  to 
the  knowledge  of  the  employer,  was 
quarrelsome  and  dangerous,  but  who  was 
nevertheless  allowed  to  continue  in  the 
employment ; 13  and  where  the  workman 


ployee  who  must  be  expressly  directed  as 
to  the  time,  manner,  and  extent  of  doing 
each  particular  task.  Hence,  when  a  serv- 
ant undertakes  in  the  course  of  his  employ- 
ment, during  the  proper  hours  therefor, 
and  in  the  proper  place,  to  do  something 
in  furtherance  of  his  master's  business,  and 
meets  with  accidental  injury  therein,  the 
trial  court's  finding  that  the  accident  arose 
out  of  and  in  the  course  of  employment 
should  not  be  disturbed,  unless  it  is  clear  to 
us  that  the  ordinary  servant,  in  the  same 
situation,  would  have  no  reasonable  justi- 
fication for  believing  that  what  he  under- 
took to  do  when  injuried  was  within  the 
scope  of  his  implied  duties." 

10  A  carpenter  is  acting  within  the  scope 
of  his  employment  in  attempting  to  turn 
on  the  electric  current  for  the  purpose  of 
putting  in  motion  a  grindstone  on  which 
he  intended  to  sharpen  his  chisel  for  service 
in  his  particular  work.  Wendt  v.  Industrial 
Ins.  Commission  (1914)  80  Wash.  Ill,  141 
Pac.  311,  5  N.  C.  C.  A.  790. 

11 A  finding  under  the  workman's  com- 
pensation act,  that  petitioner's  decedent  was 
not  walking  in  the  usual  passageway  be- 
tween the  tracks  of  a  railroad  company  and 
the  defendant  coal  company's  trestle,  but 
was  walking  on  the  railroad  tracks  volun- 
tarily at  the  time  he  was  struck  and  killed, 
and  that  the  accident  therefore  did  not  arise 
out  of  the  decedent's  employment,  and  the 
petitioner  was  not  entitled  to  recover  com- 
pensation, is  conclusive  on  certiorari.  Siem- 
ientkowski  v.  Berwind  White  Coal  Min.  Co. 
(1914)  —  N.  J.  Eq.  — ,  92  Atl.  909. 

There  can  be  no  recovery  of  compensation 
under  the  New  Jersey  act,  where  the  death 
of  an  employee  occurred  while  he  was  using 
an  automobile  belonging  to  the  employer, 
which  he  had  been  ordered  not  to  use  just 
before  he  took  it  out,  since  by  his  own 
acts  he  subjected  himself  to  an  added  peril 
which  was  not  incidental  to  his  employ- 
ment. Reimers  v.  Proctor  Pub.  Co.  (1914) 
85  N.  J.  L.  441,  89  Atl.  931,  4  N.  C.  C.  A. 
738.  The  court  cited  as  authority  for  this 
ruling  the  case  of  Barnes  v.  Nunnery  Col- 
liery Co.  [1912]  A.  C.  (Eng.)  44,  81  L.  J. 
K.  B.  N.  S.  213,  105  L.  T.  N.  S.  961,  28 
Times  L.  R.  135,  56  Sol.  Jo.  159,  49  Scot. 
L.  R.  688,  5  B.  W.  C.  C.  195,  in  which  a  boy 
was  injured  while  riding  in  a  tub  in  a  mine 
in  violation  of  the  rules  and  express  orders 
of  the  employers. 
L.R.A.1916A. 


An  injury  to  an  engineer  employed  to 
run  the  engine  and  dynamo  in  the  basement 
of  a  printing  plant  while  he  is  attempting 
to  operate  the  elevator  for  the  accommoda- 
tion of  employees  of  the  plant  on  the  up- 
per floors  of  the  building,  without  the 
knowledge  or  request  of  his  employer,  and 
at  a  time  when  he  did  not  need  such  serv- 
ice, does  not  arise  out  of  or  in  the  course 
of  his  employment,  within  the  meaning  of 
the  workmen's  compensation  act.  Spooner 
v.  Detroit  Saturday  Night  Co.  (1915)  - 
Mich.  — ,  ante,  17,  153  N.  W.  657. 

12  An  employee  of  a  city  park  department 
is  acting  within   the  scope  of  his  employ- 
ment where  he  was  injured  while  mowing 
the   lawn   between   the  curb  and   the   side- 
walk, at  the  direction  of  his  superiors,  and 
such  work  was  properly  within  the  juris- 
diction of  the  park  commissioners.     Supe- 
rior  v.   Industrial   Commission    (1915)    160 
Wis.  541,  152  N.  W.  151,  8  N.  C.  C.  A.  960. 

A  workman  employed  by  an  electric  light 
company  to  trim  trees  is  not  outside  the 
scope  of  his  employment  in  trimming  a  tree 
through  which  the  wires  of  the  company 
were  not  to  pass,  when  he  was  doing  the 
work  under  the  direction  of  his  superior, 
since  it  was  not  part  of  his  business  to  in- 
quire into  the  right  of  the  company  to  trim 
any  particular  tree.  Howard's  Case  (1914) 
218  Mass.  404,  105  N.  E.  636,  5  N.  C.  C.  A. 
449. 

13  In    McNicol's    Case    (1913)    215    Mass. 
497,  post,  306,  102  N.  E.  697,  4  N.  C.  C.  A. 
522,   in   holding  that   injuries   from   an   as- 
sault at  the  hands  of  an  intoxicated  work- 
man who  was  known  by  the  employer  to 
be  in  the  habit  of  drinking  to  excess,  and 
to  be  quarrelsome  and  dangerous  while  in- 
toxicated, arose  "out  of  the  employment," 
the  court,  in  speaking  of  the  English  act, 
said:      "It    there    had    been    held    that    in- 
juries received  from  lightning  on  a  high  and 
unusually     exposed     scaffold      (Andrew     v. 
Failsworth  Industrial   Soc.   [1904]   2  K.  B. 
(Eng.)  32,  73  L.  J.  K.  B.  N.  S.  511.  68  J.  P. 
409,  52  Week.  Rep.  451,  90  L.  T.  N.  S.  611, 
20  Times  L.  R.  429),  from  the  bite  of  a  cat 
habitually  kept  in  the  place  of  employment, 
(Rowland  v.  Wright  [1909]  1  K.  B.   (Eng.) 
963,  77  L.  J.  K.  B.  N.  S.  1071,  99  L.  T.  N.  S. 
758,   24   Times   L.   R.    852),   from   a    stone 
thrown  by  a  boy  from  the  top  of  a  bridge 
at  a  locomotive  passing  underneath   (Chal- 
lis  v.  London  &  S.  W.  R.  Co.  [1905]  2  K.  B. 


240 


WORKMEN'S  COMPENSATION. 


was  charged  with  the  duty  of  ejecting 
trespassers ;  14  and  where  a  section  boss 
was  in  charge  of  a  gang  of  workmen, 
mostly  foreigners.16 

So,  too,  it  has  been  held  that  compen- 
sation is  recoverable  for  injuries  re- 
ceived while  in  the  course  of  the  employ- 
ment, where  the  injury  was  caused  by 
horseplay  on  the  part  of  fellow  workmen 
or  strangers,  if  the  injured  employee 
himself  had  taken  no  part  in  such  horse- 
play. Thus,  an  injury  to  an  employee 
engaged  in  operating  a  trip  hammer, 
which  injury  was  received  in  attempt- 
ins:  to  remove  a  tin  can  which  had  been 


placed  under  the  trip  hammer  by  a  by- 
stander for  fun,  arises  out  of  and  in 
the  course  of  the  employment,  where  the 
employee  took  no  part  in  the  fun  him- 
self.16 A  risk  of  injury  caused  by  slip- 
ping while  dodging  a  playful  attack  by 
a  fellow  workman  is  a  risk  incident  to 
the  service  for  which  the  employer  is 
liable  for  compensation,  where  the  in- 
jured servant  did  nothing  to  invite  the 
attack.17 

But  an  injury  cannot  be  said  to  arise 
"out  of  and  in  the  course  of  the  employ- 
ment" where  it  results  solely  from  the 
sportive  act  of  a  co-worker  who  was  in 


(Eng.)  154,  74  L.  J.  K.  B.  N.  S.  569,  53 
Week.  Rep.  613,  93  L.  T.  N.  S.  330,  21  Times 
L.  R.  486).  and  from  an  attack  upon  a  cash- 
ier traveling  with  a  large  sum  of  money 
(Nisbet  v.  Rayne  [1910]  2  K.  B.  (Eng.) 
689,  80  L.  J.  K.  B.  N.  S.  84,  103  L.  T.  N. 
S.  178,  26  Times  L.  R.  632,  54  Sol.  Jo.  719, 

3  B.  W.  C.  C.  507),  all  arose  in  the  course 
and  out  of  the  employment,  while  the  con- 
trary had  been  held  as  to  injuries  result- 
ing from  a  piece  of  iron  thrown  in  anger 
by  a  boy  in  the  same  service   (Armitage  v. 
Lancashire    &    Y.    R.    Co.    [1902]    2    K.    B. 
(Eng.)    178,  71  L.  J.  K.  B.  N.  S.  778,  66 
J.  P.  613,  86  L.  T.  N.  S.  883,  18  Times  L.  R. 
648),   from   fright   at   the   incursion   of   an 
insect    into    the    room    (Craske    v.    Wigan 
[1909]   2  K.  B.   (Eng.)    635,  78  L.  J.  K.  B. 
N.  S.  994,  101  L.  T.  N.  S.  6,  25  Times  L.  R. 
632,  53  Sol.  Jo.  560),  and  from  a  felonious 
assault   of   the    employer    (Blake    v.    Head 
(1912)  106  L.  T.  N.  S.  (Eng.)  822,  28  Times 
L.  R.  321,  5  B.  W.  C.  C.  303).     ...     A 
fall  from  a  quay  by  a  sailor  while  return- 
ing from  shore   leave    (Kitchenham  v.   The 
Johannesburg    [1911]    1   K.   B.    (Eng.)    523, 
80  L.  J.  K.  B.  N.  S.  313,  103  L.  T.  N.  S. 
778,  27   Times  L.  R.   124,  55  Sol.  Jo.   124, 

4  B.  W.  C.  C.  91,  s.  c.   [1911]  A.  C.   (Eng.) 
417,  80  L.  J.  K.  B.  N.  S.   1102,  105  L.  T. 
N.  S.  118,  27  Times  L.  R.  504,  55  Sol.  Jo. 
599,  4   B.  W.   C.   C.   311),   a   sting  from   a 
wasp    (Amys    v.    Barton    [1912]    1    K.    B. 
(Eng.)   40.  81  L.  J.  K.  B.  N.  S.  65,  105  L. 
T.  N.  S.  619,  28  Times  L.  R.  29,  5  B.  W. 
C.   C.    117),  and   a   frost   bite    (Warner   v. 
Couchman    [1912]    A.   C.    (Eng.)    35,   81   L. 
J.  K.  B.  N.  S.  45,  105  L.  T.  N.  S.  676,  28 
Times   L.   R.   58,   56   Sol.   Jo.   70,   49   Scot. 
L.   R.   681,  5   B.  W.  C.   C.   177),  all   have 
been  held  to  be  injuries  not  'arising  out  of 
the  employment.     But  we  find  nothing  in 
any  of   them   in   conflict   with   our   present 
conclusion.     Nor  is  there  anything  at  vari- 
ance  with   it   in   Mitchinson   v.   Day   Bros. 
[1913]   1  K.  B.    (Eng.)    603,  82  L.  J.  K.  B. 
N.   S.  421,  108  L.  T.  N.  S.   193,  29   Times 
L.  R.  267,  57  Sol.  Jo.  300,  6  B.  W.  C.  C.  190, 
where   it  was   held   that   injuries   resulting 
from  an  assault  by  a  drunken  stranger  up- 
on  an   employee   engaged   at   his   work   on 
the  highway  did  not  arise  out  of  the  em- 
ployment.   That  was  a  quite  different  situa- 
tion from  the  one  now  before  us." 

14  A    superintendent    of    a    mill,    charged 
L.R.A.1916A. 


with  the  duty  of  removing  trespassers  from 
the  mill,  suffers  an  injury  "arising  out  of 
and  in  the  course  of"  his  employment, 
where  he  is  shot  by  an  intruder  whom  he 
had  ordered  from  the  mill,  and  who  had 
previously  made  a  disturbance  in  the  mill, 
and  whom  the  superintendent  had  been 
expressly  directed  to  order  from  the  mill. 
Re  Reithel  (1915)  —  Mass.  — ,  post,  304,  109 
N.  E.  951.  The  court  said:  "It  is  not 
usual  for  people  with  whom  a  mill  super- 
intendent comes  in  contact  to  commit 
crime.  Conduct  of  that  sort  is  not  to  be 
presumed  or  commonly  expected.  Danger 
of  being  assaulted  is  not  the  usual  con- 
comitant of  work.  But  when  a  special 
duty  arises  to  deal  with  one  who  is  a  tres- 
passer, and  annoyer  of  a  woman  employee, 
and  a  creator  of  disturbance,  then  a  cor- 
responding special  risk  of  personal  violence 
arises.  That  duty  and  that  risk  then 
become  correlative." 

15  A  section  foreman  in  charge  of  a  gang 
of   fifteen   or   twenty   section   men,   mainly 
Greeks,  may  be  found  to  be  acting  within 
the  scope  of  his  employment  in  attempting 
to   take   a    shovel   away   from   one   of   the 
gang,  who,  after  he  had  been  properly  in- 
structed,  continued   to   do   the   work    in    a 
wrong  manner,  and  who  continued  to  hold 
the  shovel  after  he  had  been  told  to  drop  it 
and  get  his  time,  and  who,  upon  the  fore- 
man's attempting  to  take  the  shovel,  com- 
mitted an  assault  upon  him.     Western  In- 
demnity Co.  v.  Pillsbury  (1915)  —  Cal.  --, 
151  Pac.  398. 

16  Knopp  v.  American  Car  &  Foundry  Co. 
(1914)   186  111.  App.  605,  5  N.  C.  C.  A.  798. 

"Hulley  v.  Moosbrugger  (1915)  —  N.  J. 
L.  — ,  93  Atl.  79.  The  court,  after  stating 
that  it  was  immaterial  that  the  fellow 
servant,  in  making  the  attack  upon  the 
deceased,  was  not  acting  within  the  ccope 
of  his  employment,  said:  "It  was  a  negli- 
gent act  of  the  fellow  workman  to  make  a 
pass  at  the  decedent  while  passing  him  on 
the  slant  of  the  concrete  floor,  and  for  such 
negligence  the  master  would  not  have  been 
liable  at  common  law,  not  upon  the  theory 
that  it  was  not  a  risk  reasonably  incident 
to  the  employment,  but  upon  the  ground 
that  it  was  a  risk  which  the  servant  as- 
sumed when  he  entered  into  his  master's 
employ." 

rraDe  Filippis  v.  Falkenberg    (1915)    — 


INJURIES  IN  COURSE  OF  EMPLOYMENT. 


241 


no  way  representing  the  master  and 
which  act  in  no  way  grew  out  of  or 
was  connected  with  the  employment.178 
There  is  a  decided  conflict  of  opinion 
in  the  few  reported  cases  upon  the  ques- 
tion whether  injuries  or  death  caused 
by  lightning  can  be  found  to  arise  out 
of  and  in  the  course  of  the  employment. 
In  the  earliest  case  reported,  the  su- 
preme court  of  Wisconsin  merely  held 
that  there  was  evidence  to  support  the 
finding  of  the  Industrial  Commission, 
that  an  employee  who  was  struck  by 
lightning  and  killed  while  employed  at 
work  on  a  dam  was  not  injured  by  a 
hazard  incident  to  or  growing  out  of  the 
employment  substantially  different  from 
that  of  ordinary  out-of-door  work  during 
a  thuncfer  storm.18  It  is  to  be  noted 
that  the  court  called  attention  to  the 
fact  that  the  trial  court  stated  in  its 
finding  that  if  the  case  were  presented 
to  it  for  a  finding  upon  the  evidence,  it 
would  not  make  the  finding  that  had 
been  made  by  the  Commission.  In  the 
next  case,  the  Michigan  supreme  court, 
reversing  the  finding  of  the  Commission, 
held  that  death  by  lightning  of  a  section 
hand  on  a  railroad,  while  in  a  barn  to 
which  he  had  resorted  for  refuge  from 
the  storm,  did  not  arise  out  of  and  in 
the  course  of  his  employment  within  the 
meaning  of  the  Michigan  act,  although 
he  had  gone  to  the  barn  at  the  direction 


of  the  foreman,  and  it  appeared  that  the 
men  were  customarily  paid  for  the  time 
spent  while  seeking  shelter  from  storm.19 
On  the  other  hand,  the  Minnesota  court 
has  held  that  a  finding  that  the  death 
of  a  workman  was  the  result  of  an  ac- 
cident "arising  out  of"  his  employment 
is  sustained  by  the  evidence  which  shows 
that  the  workman  was  a  driver  for  an 
ice  company,  who  was  required  to  fol- 
low a  fixed  route  in  substantial  disregard 
of  weather  conditions,  although  permit- 
ted to  seek  shelter  in  times  of  necessity, 
and  who,  during  a  storm,  left  his  team 
and  went  to  a  tall  tree,  either  for  pro- 
tection or  in  performance  of  his  duties, 
soliciting  orders,  and  was  killed  by  a 
bolt  of  lightning  which  struck  the  tree 
under  which  he  was  standing.20  It  is 
clearly  impossible  to  reconcile  these 
cases, — especially  the  Michigan  and  Min- 
nesota decisions.  The  facts  in  the  for- 
mer case  present  a  much  stronger  case 
for  the  workman  than  do  the  facts  in  the 
latter,  and  it  is  reasonably  clear  that 
the  Minnesota  court  would  not  have  in- 
terfered with  the  findings  of  the  Com- 
mission. 

The  burden  of  furnishing  evidence 
from  which  the  inference  can  be  legiti- 
mately drawn  that  the  injury  "arose  out 
of  'and  in  the  course  of"  the  employment 
rests  upon  the  claimant,21  and  an  award 


App.  Div.  — ,  155  N.  Y.  Supp.  761.  (Co- 
worker  thrust  shears  through  aperture  in 
partition  between  toilet  rooms  injuring 


claimant's   eye). 
18  Hoenig       v. 


Industrial       Commission 


(1915)    159  Wis.  646,  post,  339,  150  N.  W. 
996,  8  N.  C.  C.  A.  192. 

W  Klawinski  v.  Lake  Shore  &  M.  S.  R.  Co. 
(1915)  —  Mich.  — ,  post,  342,  152  N.  W.  213. 

20  State  ex   rel.  People's   Coal   &   Ice   Co. 
v.   District   Ct.    (1915)    --   Minn.   — ,   post, 
344.  153  N.  W.  119. 

21  Re  Savage   (1915)  —  Mass.  — ,  110  N. 
E.  283;  King's  Case  (1915)   220  Mass.  290, 
107  N.  E.  959;   McCoy  v.  Michigan  Screw 
Co.  (1914)   180  Mich.  454,  post,  323,  147  N. 
W.  572,  5  N.  C.  C.  A.  455;  Bryant  v.  Fis- 
sell  (1913)  84  N.  J.  L.  72,  86  Atl.  458,  3  N. 
C.  C.  A.  585. 

The  burden  of  proving  the  essential  facts 
necessary  to  establish  a  case  rests  upon  the 
party  petitioning  for  relief  under  the  work- 
men's compensation  act  as  much  as  it  does 
upon  the  plaintiff  in  any  proceeding  at  law. 
Corral  v.  William  H.  Hamlyn  &  Son  (1915) 
-  R.  I.  — ,  94  Atl.  877. 

"It  is  well  settled  that  the  burden  rests 
upon  one  claiming  compensation  to  show 
by  competent  testimony,  direct  or  circum- 
stantial, not  only  the  fact  of  an  injury,  but 
that  it  occurred  in  connection  with  the 
alleged  employment,  and  both  arose  out  of 
and  in  the  course  of  the  service  at  which 


the    injured    party   was    employed." 
L.R.A.1916A. 


Hills 


16 


v.  Blair  (1914)  182  Mich.  20,  148  N.  W. 
243,  7  N.  C.  C.  A.  409. 

Claimants  under  the  workmen's  compen- 
sation act  have  the  burden  of  establishing 
by  the  preponderance  of  evidence  that  the 
injury  arose  out  of  and  in  the  course  of 
the  employment.  Sponatski's  Case  (1915) 
220  Mass.  526,  post,  333,  108  N.  E.  466,  8 
N.  C.  C.  A.  1025. 

22  An  award  of  compensation  must  be 
set  aside  as  having  been  made  on  mere 
conjecture,  where  the  Commission  found 
that  something  fell  into  the  eye  of  the  em- 
ployee, a  plumber,  while  he  was  lying  on 
his  back  to  fix  the  hot  water  cock  of  a 
wash  basin,  which  caused  acute  pain,  and 
impelled  the  rubbing  of  the  eye,  and  that 
gonorrhoeal  infection  developed,  resulting  in 
the  loss  of  the  eye,  and  further  found  that 
the  substance  which  fell  in  the  eye  may 
have  been  infected,  or  "with  the  eye  in- 
flamed it  might  have  become  infected  by 
rubbing  it  with  an  infected  cloth  or  wash- 
ing it  with  infected  water  or  in  other  ways," 
although  it  was  found  upon  sufficient  evi- 
dence that  the  claimant  had  no  gonorrhoeal 
infection  except  that  which  developed  in 
his  eve.  Voelz  v.  Industrial  Commission 
(1915")  —  Wis.  — ,  152  N.  W.  830. 

An  award  of  compensation  for  injuries 
from  lead  poisoning  to  an  employee  in  a 
printing  shop,  engaged  in  handling  the  type 
as  it  is  cast  from  molten  lead  by  a  linotype 
machine,  must  be  reversed,  where  there  is 


242 


WORKMEN'S  COMPENSATION. 


which  is  based  on  mere  surmise  or  con- 
jecture will  be  set  aside.22  Although 
the  claimant  must  show  that  the  in- 
jury arose  out  of  and  in  the  course  of 
the  employment,  nevertheless  these  facts 
may  be  shown  by  circumstantial  evi- 


dence.23 In  the  note  below  will  be  found 
a  number  of  cases  in  which  it  was  held 
that  the  evidence  developed  was  suf- 
ficient to  show  that  the  injury  in  ques- 
tion arose  out  of  and  in  the  course  of 
the  employee's  employment.24 


nothing  to  show  that  lead  fumes  or  lead 
dust  or  any  dangerous  compound  of  lead 
is  given  off  in  a  printing  office,  or  in  such 
handling  of  type  as  that  engaged  in  by 
the  employee  to  such  an  extent  or  in  such 
form  as  is  likely  to  be  taken  into  the  human 
system  and  to  cause  plumbism  or  lead 
poisoning.  Re  Doherty  (1915)  —  Mass.  — , 
109  N.  E.  887. 

Where  a  workman  employed  in  building  a 
bridge  over  a  river  near  its  outlet  in  a 
bay  was  last  seen  alive  at  his  home  some 
miles  from  the  place  of  work,  and  two 
hours  before  he  was  to  return  to  his  work, 
and  his  body  was  afterwards  found  in  the 
bay,  and  there  was  no  evidence  as  to  how 
he  met  his  death,  it  may  properly  be  in- 
ferred that  he  came  to  his  death  by  acci- 
dent, but  not  that  the  accident  arose  out 
of  his  employment.  Steers  v,  'annewald 

(1914)  85  N.  J.  L.  449,  89  Atl.  1,07,  4  N.  C. 
C.  A.  676. 

The  finding  that  the  dependent  is  not 
entitled  to  compensation  is  justified  where 
it  appeared  that  the  death  of  the  workman 
occurred  by  reason  of  his  unexplained  ab- 
sence from  the  car  which  he  was  engaged  in 
unloading,  and  his  unexplained  presence  on 
the  track  where  he  was  struck.  Re  Savage 

(1915)  —  Mass.  — ,  110  N.  E.  283. 

To  justify  recovery  of  compensation,  it 
is  not  enough  to  show  a  state  of  facts  which 
is  equally  consistent  with  no  right  of  com- 
pensation as  it  is  with  such  right.  (Mass.) 
Ibid. 

23  Poccardi  v.  Public  Service  Commission 
(1915)  —  W.  Va.  — ,  post,  299,  84  S.  E.  242. 

24  Where  the  physical  incapacity  of  a  lead 
grinder   for   work   has   been   found   by   the 
Industrial    Accident    Board    to    have    been 
caused  by  the  gradual  absorption  of  poison 
into  his  system  subsequent  to  the  time  when 
the  act  went  into  force,  there  is  no  reason- 
able conclusion  other  than  that  such  injury 
arose  out  of  and  in  the  course  of  his  em- 
ployment.      Johnson's     Case      (1914)      217 
Mass.  388,  104  N.  E.  735,  4  N.  C.  C.  A.  843. 

A  finding  by  the  Industrial  Accident 
Board,  that  the  death  of  an  employee  was 
caused  by  injury  arising  "out  of  and  in 
the  course  of  his  employment,"  will  not  be 
set  aside  merely  because  hearsay  evidence 
was  erroneously  admitted,  where,  three  days 
before  the  employee's  death,  the  employer 
made  a  report  of  the  accident  in  which  the 
"cause  and  manner  of  accident"  was  stated 
as  being  that  the  employee  "was  throwing 
wood  in  furnace  and  a  nail  run  in  left  hand, 
inflicting  a  deep  gash,"  and  after  his  death 
the  employer  made  a  second  report  of  the 
accident  in  which  he  stated  that  the  em- 
ployee was  injured  by  scratching  his  hand 
on  a  nail.  Reck  v.  Whittlesberger  (1914) 
181  Mich.  463,  148  N.  W.  247.  The  court 
said:  "We  think  that  such  reports  from 
the  employer,  where  all  sources  of  informa-  | 
L.R.A.1916A. 


tion  are  at  his  command  when  the  reports 
are  made,  and  he  has  had  ample  oppor- 
tunity to  satisfy  himself  of  the  facts,  can 
properly  be  taken  as  an  admission,  and  at 
least  as  a  prima  facie  evidence  that  such 
accident  and  injury  occurred  as  reported." 

Where,  under  the  rules  of  the  employer, 
it  was  the  duty  of  the  foreman  of  the 
factory  to  notify  immediately  his  superior 
of  any  injury,  and  it  appeared  that  an 
injured  workman,  after  receiving  an  in- 
jury, reported  to  the  foreman  in  charge 
of  the  shop,  and  this  foreman  put  a 
memorandum  in  writing,  and  thereupon 
notified  his  superior  of  the  fact  of  the 
injury,  and  the  employer  notified  its  indem- 
nity company,  these  acts  are  at  least  prima 
facie  evidence  that  an  accident  and  in- 
jury occurred,  and  that  the  injury  arose  in 
the  course  of  the  deceased's  employment. 
Fitzgerald  v.  Lozier  Motor  Co.  (1915)  - 
Mich.  — ,  154  N.  W.  67. 

Where  an  employee,  who  was  engaged 
in  cleaning  rubbish  out  of  a  flume,  was  last 
seen  standing  on  a  walk  very  near  the  river, 
with  his  back  toward  the  stream,  trying  to 
pull  some  bushes  out  of  the  flume  with  an 
ordinary  garden  rake,  and  a  few  minutes 
later  was  missing  and  could  not  be  found, 
and  twelve  days  later  his  body  was  re- 
covered from  the  river  below  the  mill, 
a  broken  rake  was  found  in  the  flume,  and 
a  freshly  broken  rake  handle  was  found 
in  the  river,  it  may  be  found  that  the 
employee  suffered  death  by  accident  "aris- 
ing out  of  and  in  the  course  of  his  em- 
ployment." Boody  v.  K.  &  C.  Mfg.  Co. 
(1914)  77  N.  H.  208,  ante,  10,  90  Atl.  859, 
Ann.  Cas.  1914D,  1280. 

When  the  evidence  permitted  the  common 
pleas  judge  to  find  as  a  fact  that  the  de- 
cedent, while  at  work  for  his  employer  as 
a  journeyman  carpenter,  on  a  building  in 
course  of  erection,  was  killed  by  the  fall- 
ing of  a  bar  of  metal  from  one  of  the  upper 
stories,  which  was  caused  to  fall  by  a  work- 
man of  an  independent  contractor,  who  had 
work  on  the  same  building,  the  judge  is 
justified  in  concluding  that  the  decedent's 
injury  arose  "out  of  and  in  the  course  of 
his  employment."  Bryant  v.  Fissell  (1913) 
84  N.  J.  L.  72,  86  Atl.  458,  3  N.  C.  C.  A. 
585. 

Where  a  railroad  employee  was  found 
after  a  train  had  gone  out,  lying  some  3 
or  4  feet  from  the  rails,  with  his  feet 
toward  the  track,  having  an  injury  in 
his  head,  and  died  shortly  thereafter  from 
a  broken  neck,  an  inference  arises  that  his 
injury  was  caused  by  accident  arising  out 
of  and  in  the  course  of  his  employment. 
Muzik  v.  Erie  R.  Co.  (1914)  85  N.  J.  L.  129, 
89  Atl.  248,  4  N.  C.  C.  A.  732,  affirmed  in 
86  N.  J.  L.  695,  92  Atl.  1087. 

The  supreme  court  will  not  interfere  with 
the  findings  of  the  justice  of  the  superior 


SERIOUS  OR  WILFUL  MISCONDUCT. 


243 


XXXIV.   "Serious   or   ivilful   miscon- 
duct" of  employee. 

As  to  the  effect  of  serious  and  wilful 
misconduct  of  workman  under  the  Eng- 
lish act,  see  ante,  75. 

By  the  express  terms  of  most  of  the 
American  statutes  no  compensation  is  re- 
coverable for  injuries  caused  by  the  "se- 
rious and  wilful  misconduct"  of  the  em- 
ployee. This  phrase  means  something 


more  than  mere  negligence,25  or  even 
gross  negligence.26  It  involves  conduct 
of  a  quasi  criminal  nature, — the  inten- 
tional doing  of  something  either  with  .the 
knowledge  that  it  is  likely  to  result  in 
serious  injury,  or  with  a  wanton  and 
reckless  disregard  of  its  probable  con- 
sequences.27 

"Serious  and  wilful  misconduct"  does 
not  include  every  violation,  of  a  rule  or 


court  that  the  death  of  a  workman  arose 
out  of  and  in  the  course  of  his  employment 
where  there  was  evidence  that  he  was  em- 
ployed by  an  ice  company  to  watch  its  pond 
and  to  prevent  all  persons  from  cutting 
holes  and  fishing  through  the  ice,  and  was 
not  directed  as  to  how  he  should  perform 
that  duty  or  at  what  place  on  the  pond 
or  its  shores  he  should  station  himself, 
and  that  during  the  time  in  which  he  was 
there  on  duty,  and  while  he  was  alone 
in  the  center  of  the  pond,  the  ice  on  which 
he  was  walking  broke,  and  he  was  precipi- 
tated into  the  water  and  drowned.  Jillson 
v.  Ross  (1915)  —  R.  I.  — ,  94  Atl.  717. 

The  death  of  an  employee  who,  prior  to 
his  injury,  was  shown  to  be  a  seemingly 
strong  and  healthy  man,  and  who  was 
burned  on  his  hands  and  face  by  an  ex- 
plosion of  gas,  and  subsequently  complained 
of  pains  in  his  throat  and  chest,  and  was 
in  a  run-down  condition,  and  died  about 
four  months  after  his  injury  of  miliary 
tuberculosis,  may  be  found  to  have  been 
proximately  caused  by  the  gas  explosion, 
where  there  was  expert  testimony  to  the 
effect  that  the  inhalation  of  the  gas  fumes 
would  furnish  an  opportunity,  if  the  in- 
fection of  the  disease  existed  in  a  latent 
condition  at  the  time,  for  the  latent  con- 
dition to  be  kindled  into  an  active  condi- 
tion; and  that  if  the  infection  was  not 
existent,  the  inhalation  of  gas  would  bring 
about  the  destruction  of  air  cells  in  the 
lungs,  and  would  lower  his  vitality,  and 
make  the  person  more  susceptible  to  such 
infection;  and  that  the  usual  time  for  the 
course  of  miliary  tuberculosis  was  from 
four  to  six  weeks,  but  that  it  might  con- 
tinue for  a  period  of  three  or  four  months. 
Heileman  Brewing  Co.  v.  Schultz  (1915) 
—  Wis.  — ,  152  N.  W.  446. 

Where  there  is  evidence  to  support  the 
inference  that  the  deceased  workman,  who 
was  found  on  a  Sunday  night  fatally  in- 
jured, on  the  basement  floor  underneath 
a  hole  which  had  been  cut  in  the  first  floor 
of  the  building,  usually  went  to  the  part 
of  the  building  where  he  fell  unon  Sunday 
evening,  and  that  at  times  on  Sunday  even- 
ing he  performed  services  in  any  part  of 
the  building,  the  award  of  the  Industrial 
Commission,  based  upon  the  conclusion  of 
fact  that  the  deceased  accidentally  sus- 
tained a  personal  injury  which  caused  his 
death,  and  that  it  was  incidental  to  his  em- 
ployment, will  not  be  disturbed.  Heileman 
Brewing  Co.  v.  Shaw  (1915)  —  Wis.  --.  154 
N.  W.  631. 
L.R.A.1916A. 


Where  the  deceased  workman  was  em- 
ployed as  night  janitor  and  watchman  by 
a  bank,  his  duties  being,  among  other 
things,  to  clean  ink  wells  and  cuspidors, 
and  make  rounds  of  the  building,  and  it 
appeared  that  he  was  at  the  bank  on  duty 
on  the  night  in  question,  the  testimony  of 
another  employee  that  the  deceased  ap- 
peared before  him  sucking  his  thumb,  and 
made  the  statement  that  he  had  pricked  it, 
is  competent  evidence  as  part  of  the  res 
gestse  where  it  also  appeared  from  the  evi- 
dence that  it  was  the  deceased's  custom 
to  suck  any  part  injured  immediately  upon 
receiving  any  injury,  and  that  he  was  in 
perfect  condition  when  he  entered  the  bank 
that  night.  First  Nat.  Bank  v.  Industrial 
Commission  (1915)  —  Wis.  — ,  154  N.  W. 
847. 

25  Great  Western  Power  Co.  v.  Pillsbury 
(1915)  —  Cal.  — ,  149  Pac.  35. 

The  act  of  a  carpenter,  in  attempting  to 
descend  from  the  roof  of  a  building  on 
which  he  is  working  by  means  of  a  loose 
rope,  one  end  of  which  is  held  in  the  hands 
of  a  fellow  workman,  instead  of  using  a 
ladder  provided  for  such  purposes,  is  not 
intentional  and  wilful  misconduct.  Clem  v. 
Chalmers  Motor  Co.  (1914)  178  Mich.  340, 
post,  352,  144  N.  W.  848,  4  N.  C.  C.  A.  876. 

26  "Serious   and   wilful   misconduct"   is   a 
very  different  thing  from  negligence,  or  even 
from  gross  negligence;  it  resembles  closely 
the   wanton   or  reckless   misconduct   which 
will  render  one  liable  to  a  trespasser  or  a 
bare    licensee.      Burns's    Case     (1914)     218 
Mass.  8,  105  N.  E.  601,  5  N.  C.  C.  A.  635; 
Nickerson's    Case    (1914)    218    Mass.    158, 
105  N.  E.  604,  5  N.  C.  C.  A.  645. 

An  employee  engaged  in  checking  auto- 
mobiles as  they  were  placed  on  a  car,  who 
was  injured  while  attempting  to  cross 
through  a  standing  train  without  stopping 
to  see  where  the  trainmen  were,  and  with- 
out knowing  but  what  they  were  signaling 
the  train  to  back  up  or  go  ahead,  is  not, 
as  a  matter  of  law,  guilty  of  intentional 
and  wilful  misconduct  within  the  meaning 
of  the  Michigan  act.  Gignac  v.  Studebaker 
Corp.  (1915)  —  Mich.  — ,  152  N.  W.  1037. 
The  court  said:  "While  it  is  quite  clear 
that  the  claimant's  injury  was  brought 
about  by  his  own  gross  negligence,  we  are 
of  opinion  that  it  cannot  be  said,  as  a  mat- 
ter of  law,  that  he  was  guilty  of  such  inten- 
tional and  wilful  misconduct  as  would  de- 
feat his  recovery." 

27  Burns's  Case   (Mass.)    supra. 


244 


WORKMEN'S  COMPENSATION. 


of  express  orders.28  But  it  has  been 
said  that  "it  cannot  be  doubted  that  a 
workman  who  violates  a  reasonable  rule 
made  for  his  own  protection  from  se-  j 
rious  bodily  injury  or  death  is  guilty  of 
misconduct,  and  that  where  the  work- 
man deliberately  violates  the  rule  with 
knowledge  of  its  existence,  and  of  the 
dangers  accompanying  its  violation,  he 
is  guilty  of  wilful  misconduct." 29 

Suicide  has  been  spoken  of  as  wilful 
misconduct.30 

Where  an  employee  adopts  the  cus- 
tomary way  of  operating  a  machine, 
he  cannot  be  held  to  be  guilty  of  con- 
tributory negligence  as  a  matter  of  law, 
which  defense  was  left  open  to  the  emr 
ployer  under  the  Wisconsin  act  of 
1911.31  The  refusal  of  an  injured  work- 
man, a  foreigner,  unable  to  speak  or 
understand  the  English  language,  and 
suffering  great  pain,  to  submit  to  a  se- 
rious operation,  until  fifteen  or  sixteen 
hours  after  it  was  first  found  neces- 
sary, does  not  amount  to  the  intentional 
and  wilful  misconduct  which  will  de- 
feat a  right  to  compensation.32  An  em- 
ployee is  not  negligent,  as  a  matter  of 
law,  in  going  onto  a  wet  and  slippery 
walk  to  clear  the  debris  from  the  rack 
protecting  the  flume  leading  water  from 
the  dam  to  the  mill  in  which  he  is  em- 


ployed, where  the  work  was  necessary 
and  all  fair-minded  men  would  not  agree 
that  the  risk  of  injury  was  so  apparent 
that  the  ordinary  man  would  not  have 
encountered  it.33 

The  New  Jersey  statute  makes  no  ex- 
emption because  of  the  wilful  negli- 
gence on  the  part  of  the  workman.34 

The  existence  of  "serious  and  wilful 
misconduct"  under  any  particular  cir- 
cumstances is  usually  a  question  of  fact.36 
But  it  has  been  held  that  inasmuch  as  no 
compensation  can  be  awarded  to  a  work- 
man whose  injuries  were  caused  by  his 
own  wilful  misconduct,  a  question  wheth- 
er the  accident  was  caused  by  the  "wil- 
ful misconduct  of  the  employee"  is  one 
that  goes  to  the  jurisdiction  of  the  In- 
dustrial Board,  and  is  therefore  open  to 
inquiry  by  the  court  on  certiorari.36 

XXXV.  Notice  of  injury;  "actual  Knowl- 
edge" of  employer. 

As  to  notice  of  injury  under  the  Eng- 
lish act,  see  ante,  83. 

Some  of  the  statutes  require  that  no- 
tice of  the  injury  shall  be  given  to  the 
employer  after  the  accident,  or  that  the 
employer  shall,  in  some  way,  have  actual 
knowledge  of  the  injury.  These  pro- 
visions have  not  received  much  atten- 
tion in  the  court. 


28  Great  Western  Power  Co.  v.  Pillsburv 
(1915)  —  Cal.  — ,  149  Pac.  35. 

The  act  of  a  painter  in  working  near 
machinery  while  it  was  in  motion,  after 
he  had  been  told  not  to,  may  be  found 
not  to  be  serious  and  wilful  misconduct 
where  he  was  justified  in  believing  that  the 
machinery  would  stop  at  any  moment. 
Nickerson's  Case  (1914)  218  Mass.  158,  105 
N.  E.  604,  5  N.  C.  C.  A.  645. 

29  In  Great  Western  Power  Co.  v.  Pills- 
bury  (1915)  —  Cal.  — ,  149  Pac.  35,  it  was 
held  that  the  failure  of  an  experienced  line- 
man, in  working  about   live   wires,  to  use 
rubber  gloves,  as  the  rules  of  the  employer 
required,  and  as  he  had  been   recently  di- 
rected by  his  foreman  to  do,  which  gloves 
were  furnished  by  the  employer,  and  were 
at  hand,  constitutes  wilful  misconduct  justi- 
fying  an    annulment    by    the   court   of    an 
award    by    the    Industrial    Commission    of 
compensation  'to  the   lineman's  dependents. 
Angellotti,  Ch.  J.,  dissented  from  the  judg- 
ment annulling  the  award  upon  the  ground 
that  he  did  not  think  that  the  court  should 
hold  that  the  evidence  compelled  the  con- 
clusion as  a  matter  of  law  that  the  death 
of  the  deceased  was  caused  by  his  own  "wil- 
ful misconduct." 

30  Milwaukee    Western    Fuel    Co.    v.    In- 
dustrial Commission    (1915)    159  Wis.  635, 
150  N.   W.   998. 

31  Besnys  v.  Herman  Zohrlaut  Leather  Co. 
(1914)   157  Wis.  203,  147  N.  W.  37,  5  N.  C. 
C.  A.  282. 

L.R.A.19J6A. 


32  Jendrus  v.  Detroit  Steel  Products  Co. 
(1913)  178  Mich.  265,  post,  381,  144  N.  W. 
563,  Ann.  Gas.  1915D,  476,  4  N.  C.  C.  A. 
864. 

33Boody  v.  K.  &  C.  Mfg.  Co.  (1914)  77 
N.  H.  208,  ante,  10,  90  Atl.  859,  Ann.  Gas. 
1914D,  1280. 

84  West  Jersey  Trust  Co.  v.  Philadelphia 
&  R.  R.  Co.  (1915)  —  N.  J.  L.  — ,  95  Atl. 
753. 

Under  §  2  of  the  New  Jersey  act  of  1911, 
the  employer  is  exempted  from  liability 
for  compensation  only  when  the  injury  or 
death  is  intentionally  self-inflicted,  or  when 
intoxication  is  the  natural  and  proximate 
cause  of  the  injury;  there  is  no  exemption 
because  of  wilful  negligence  on  the  part  of 
the  workman.  Taylor  v.  Seabrook  (1915) 
—  N.  J.  L.  — ,  94  Atl.  399. 

35  Nickerson's  Case  (1914)  218  Mass.  158, 
105  N.  E.  604,  5  N.  C.  C.  A.  645. 

A  finding  by  the  Commission,  under  the 
workmen's  compensation  act,  that  although 
an  injury  to  an  employee  was  due  to  his 
intoxication,  it  was  not  caused  by  his  wil- 
ful misconduct,  so  as  to  relieve  the  employer 
from  liability  under  the  statute,  cannot  be 
disturbed  by  the  court  where  it  has  no 
authority  to  examine  the  evidence. 
Nekoosa-Edwards  Paper  Co.  v.  Industrial 
Commission  (1913)  154  Wis.  105,  post,  348, 
141  N.  W.  1013,  Ann.  Cas.  1915B,  995. 

38  Great  Western  Power  Co.  v.  Pillsbury 
(1915)  —  Cal.  — ,  149  Pac.  35. 


WHO  ARE  EMPLOYERS. 


245 


Where  the  employer  has  actual  knowl- 
edge of  the  happening  of  the  accident, 
and  of  the  resulting  injury,  the  giving  of 
notice  thereof  is  not  necessary ;  37  and 
the  employer  may  by  his  conduct  waive 
the  failure  of  the  plaintiff  to  make  a 
claim  within  the  time  specified  in  the 
statute,  or  at  any  time  prior  to  the  time 
when  the  notice  was  given.38 

The  actual  knowledge  on  the  part  of 
the  employer  of  the  occurrence  of  the 
injury,  required  by  §  15  of  the  work- 
men's compensation  act  of  1911,  means, 
in  the  case  of  a  corporation,  knowledge 
of  a  proper  corporate  agent.39 

The  knowledge  of  a  mayor  of  a  city 
is  the  knowledge  of  the  city.39a 

The  court  has  jurisdiction  of  all  pro- 
ceedings arising  under  the  act,  and  the 
making  of  a  demand  upon  the  employer 
for  compensation  is  not  a  condition  pre- 
cedent to  the  power  of  the  court  to  enter- 
tain such  proceedings.40 

The  provisions  of  the  act  of  1913,  re- 
quiring all  claims  of  compensation  to 
be  filed  within  one  year  after  the  ac- 
cident, does  not  apply  to  a  claim  for 
compensation  arising  under  the  act  of 
1911.41 

XXXVI.  Who  are  "employers." 

For  English  decisions  defining  this 
term,  see  ante,  113. 

A  receiver  who  is  conducting  the  busi- 
ness of  the  original  employer  during  in- 
solvency is  by  the  terms  of  the  statute 


bound  to  make  the  payments  which  the 
employee  or  his  representative  was  en- 
titled to  receive  from  the  original  em- 
ployer, during  the  time  he  conducts  the 
business.42 

Municipalities  may  be  employers 
within  the  meaning  of  the  Illinois  act.43* 

The  Michigan  statute  is  compulsory  as 
to  the  state,  each  county,  city,  township, 
incorporated  village,  and  school  district; 
but  the  state  boards  do  not  come  within 
this  provision.43 

Where  the  owner  of  a  horse  and  cart 
loaned  them,  together  with  a  driver,  to 
a  city  for  use  in  cleaning  sweepings  from 
the  street,  but  retained  control  of  the 
horse  so  far  as  feeding,  watering,  and 
care  of  it  was  concerned,  the  driver, 
while  taking  the  horse  to  water  during 
the  noon  hour,  is  in  the  employment  of 
the  owner  of  the  horse,  and  not  of  the 
city.44 

In  the  former  part  of  this  annotation, 
dealing  with  the  English  decisions,  it 
was  stated  that  the  question  frequently 
arising  in  common-law  cases,  namely, 
which  of  two  persons  is  the  master  of  a 
third  who  is  admittedly  a  servant  of  one 
of  them,  was  to  be  decided  by  common- 
law  rules,  and  not  by  rules  peculiar  to- 
the  compensation  act.  This  statement, 
however,  does  not  apply  to  all  of  the- 
American  statutes. 

Thus  under  the  New  Jersey  act,  the- 
employer  who  is  liable  for  compensation! 
is  the  person  who  makes  the  contract. 


37  State  ex  rel.  Duluth  Diamond  Drilling 
Co.   v.   District   Ct.    (1915)    129   Minn.   423, 
152   N.   W.   838. 

38  In  a  case  in  which  the  defendant  em- 
ployer   and    its    officers    knew    the    circum- 
stances and  extent  of  the  injury,  and  the 
plaintiff  was   treated   by   defendant's   phy- 
sician,  and    there   were   admissions   of   lia- 
bility  and   offers   to   confess   judgment,    as 
well  as  motions  that  judgment  be  awarded 
in  favor  of  the  plaintiff  and  against  defend- 
ant   for    a    limited    sum,    provided    it    was 
awarded    in    the    form    of    periodical    pay- 
ments,   the    defendant    will    be    deemed    to 
have    waived    the    failure    of    the    plaintiff 
to  make  the  claim  within  a  specified  time, 
or    at    a    time    earlier    than    it    was    made. 
Roberts     v.     Charles     Wolff     Packing     '  'o. 
(1915)   95  Kan.  723,  149  Pac.  413. 

89  Actual  knowledge  on  the  part  of  the 
director  of  streets  and  public  improvements 
of  a  city  of  an  injury  to  an  employee  on 
street  work  is  sufficient  to  satisfy  the  re- 
quirements of  §  15  of  New  Jersey  act  of 
1911,  which  provides  that  the  employer  shall 
have  actual  knowledge  of  the  occurrence  of 
the  injury;  and  where  the  director  of  streets 
and  public  improvements  of  a  city  was  noti- 
fied by  one  of  his  drivers  of  an  injury  to 
an  employee  engaged  in  street  work,  and 
tne  director  went  to  see  how  badly  the 
employee  was  injured,  and  took  him  his 
L.R.A.191HA. 


wages  due,  the  trial  court  is  justified  ini 
finding  that  the  municipality  had  actual 
knowledge  of  the  occurrence  of  the  injury. 
Allen  v.  Millville  (1915)  —  N.  J.  L.  — ,  95 
Atl.  130. 

39a  State  ex  rel.  Northfield  v.  District  Ct. 
(1915)  —  Minn.  — ,  155  N.  W.  103. 

40  State  ex  rel.  Duluth  Diamond  Drilling 
Co.  v.  District  Ct.    (1915)    129  Minn.  423, 
152  N.  W.  838. 

41  Baur  v.  Court  of  Common  Pleas  (1915)> 
-  N.  J.  L.  — ,  95  Atl.  627. 

42  Wood   v.   Camden   Iron   Works    (1915)' 
221   Fed.  1010. 

43  The  state  board  of  agriculture  is  not 
brought   within   the  act  by  virtue  of  part 
1,   §   5,   subd.   1,  which   provides   that   the- 
state  is  an  employer  within  the  meaning  of 
the  Michigan  act;  consequently  an  employee 
of   the   agricultural   college,   who   was   em- 
ployed by  such  state  board  of  agriculture, 
is    not   within   the    act,    where    such    state 
board  has   not  elected   to  come  within  the 
provisions  thereof.    Agler  v.  Michigan  Agri. 
College    (1914)    181   Mich.  559,  148  N.   W. 
341,  5  N.  C.  C.  A.  897. 

43a  Brown  v.  Decatur  (1914)  188  111.  App. 
147. 

«  Pigeon's  Case  (1913)  216  Mass.  51,  102 
N.  E.  932,  Ann.  Cas.  1915A,  737,  4  N.  C.  C.. 
A.  516. 


246 


WORKMEN'S  COMPENSATION. 


with  the  servant  whereby  the  latter  en- 
gages to  work  for  the  former,  and  he  on 
his  part  engages  to  pay  the  servant  for 
such  work.45 

XXXVII.  Who   are   "employees." 

For  English  decisions  defining  this 
term,  see  ante,  115. 

a.  In   general. 

There  can  be  no  recovery  of  compen- 
sation in  the  absence  of  a  contract  of 
employment  between  the  injured  person 
and  the  alleged  employer.46  The  rela- 
tion of  employer  and  employee  did  not 
exist  at  the  time  of  the  injury  where, 
when  the  plaintiff  went  to  the  city  office 
of  the  defendant's  logging  railroad  com- 
pany, and  was  directed  by  the  person  in 
•charge  to  go  to  a  certain  place  near  its 
logging  camp,  and  when  he  had  arrived 
there  he  went  to  the  defendant's  logging 
train,  and  was  there  directed  by  the 
engineer  to  place  his  baggage  upon  the 
pilot  of  the  engine  and  to  get  aboard, 
and  rode  upon  the  pilot  to  the  logging 
camp,  and  within  a  very  brief  period  of 
time  after  his  arrival  the  accident  oc- 
curred, and  he  had  not  reported  it  to  the 
foreman,  or  to  anyone  in  charge,  was 
not  upon  the  defendant's  pay  roll,  and 
had  never  done  any  work  or  received  any 
compensation  from  the  defendant.47 

Misrepresentation  made  by  an  em- 
ployee at  the  time  of  entering  the  em- 
ployment, for  the  purpose  of  securing 
the  employment,  will  not  necessarily  pre- 
vent his  recovering  compensation  for 
injuries  received  while  in  the  employ- 
ment, particularly  where  there  is  no 


causal  connection  between  the  misrep- 
resentation and  the  contract,  or  where 
such  false  representation  in  no  way  con- 
tributed to  the  injury.  Thus,  a  mis- 
representation as  to  the  name  and  age  of 
the  employee,  made  at  the  time  of  en- 
tering the  employment,  does  not,  in  the 
absence  of  any  proof  that  the  employer 
was  induced  to  enter  into  the  contract 
upon  such  misrepresentation,  constitute 
such  a  fraud  that  it  will  operate  to  re- 
lieve him  from  the  statutory  obligation 
to  make  compensation  in  a  case  arising 
under  the  statute, — especially  where  it 
does  not  appear  that  there  was  any 
causal  connection  between  the  mis- 
representation and  the  contract.48  And 
a  conductor  upon  an  electric  street  sur- 
face car  was  an  employee  of  the  company 
so  as  to  be  within  the  protection  of  the 
New  York  statute,  although  he  had  se- 
cured employment  by  making  false  affi- 
davits as  to  whether  he  was  married  or 
single,  and  as  to  whether  he  had  ever 
been  employed  by  another  railroad  com- 
pany, where  such  false  representations 
in  no  way  related  to  or  contributed  to 
the  cause  of  his  death.49 

Ordinarily  there  can  be  no  recovery  of 
j  compensation    for   injuries    to    a    minor 
j  where  he  is  employed  in  an  occupation 
'  prohibited  by  law.50    But  under  the  Wis- 
consin statute,  "minors  who  are  legally 
permitted  to  work  under  the  laws  of  the 
state"  are  embraced  within  the  act,  and 
cannot  maintain  actions  for  damages,  al- 
though at  the  time  of  the  injury  they 
are  doing  work  not  permitted  by  law.51 

Farm  laborers  are  expressly  excluded 
from  the  provisions  of  the  Massachu- 
setts act.52 


45  A  person  who  makes   a  contract  with 
contracting  teamsters  for  the  supply  of  a 
team   consisting   of   horses,   wagon,   and   a 
driver,  for  which  as  a  team  he  pays   the 
teamsters,    is    not   the    "employer"    of    the 
driver    within    the    meaning    of    the    Nt,./ 
Jersey  act,  where  he  had  no  direct  dealings 
with   the   driver,   and   had   nothing  to   say 
on   the   question   of   how   much   wages   the 
driver  should  be  paid.     Kongo  v.  R.  Wad- 
dington  &  Sons   (1915)   —  N.  J.  L.  — ,  94 
Atl.   408. 

46  No  contract  of  employment  can  be  in- 
ferred between  a  father  and  his  son  thirteen 
years  of  age,  where  when  the  boy  went  to 
work,  there  was  nothing  at  all  said  about 
the  wages,  and  the  boy  was  injured  a  short 
time   after   he   began  to  work,   and   before 
any  wages  had  in  fact  been  paid  to  him. 
Hillestad    v.     Industrial    Ins.     Commission 
(1914)  80  Wash.  426,  141  Pac.  913,  6  N.  C. 
C.  A.  763. 

47  gusznik   v.   Alger   Logging   Co.    (1915) 
-   Or.  — ,   147   Pac.   922.  In   this   case  the 

appellate  court  held  that  the  defendants 
suffered  no  substantial  wrong  by  reason  of 
the  trial  court's  action  in  striking  out  the 
L.R.A.1916A. 


defendants'  first  affirmative  defense  relating 
to  the  compensation  act,  since  under  the 
evidence  such  defense  must  necessarily  have 
failed. 

48Havey  v.  Erie  R.  Co.  (1915)  —  N.  J.  L. 
— ,  95  Atl.  124. 

49  Kenny  v.  Union  R.  Co.  (1915)  166  App. 
Div.  497,  152  N.  Y.  Supp.  117,  8  N.  C.  C.  A. 
986. 

60  Floating  bolts  to  a  mill  is  a  department 
or  a  part  of  the  manufacturing  of  shingles; 
and  there  can  be  no  compensation  recovered 
for  injury  to  a  boy  employed  at  that  work 
in  violation  of  the  statute  forbidding  the 
employment  of  minors  under  a  certain  age, 
in  any  factory,  mill,  workshop,  or  store. 
Hillestad  v.  Industrial  Ins.  Commission 

(1914)  80  Wash.  426,  141  Pac.  913,  6  N.  C. 
C.  A.  763. 

51  Foth    v.    Macomber    &    W.    Rope    Co. 

(1915)  —  Wis.  — ,  154  N.  W.  369. 

52  A  man  employed  on  a  farm  who  does 
all  kinds  of  farm  work  is  a  "farm  laborer" 
within  the  meaning  of  the  statute,  and  he 
is  not  within  the  protection  of  the  act,  al- 
though the  farmer  who  employs  him  may 
carry    on    other    business.      Keaney's    Case 


WHO  ARE  EMPLOYEES. 


247 


A  policeman  who  is  an  appointed  offi- 
cer and  is  required  to  take  an  official 
oath  of  office  is  not  an  "employee"  with- 
in the  meaning  of  the  Michigan  act,  but 
is  an  "official"  of  a  city,  and  is  not  with- 
in the  protection  of  the  act.53 

The  Wisconsin  statute  applies  to  all 
employees  of  a  railroad,  and  not  merely 
such  employees  as  are  engaged  in  shops 
,or  offices.54  The  wording  of  the  statute 
is  somewhat  ambiguous,  and  there  has 
been  a  general  belief,  especially  on  the 
part  of  laymen,  that  the  act  was  appli- 
cable only  to  such  employees  of  a  rail- 
road company  as  worked  in  shops  or 
offices. 

b.  Independent  contractors. 

Employees  occupying  the  position  of 
independent  contractors  are  not  em- 
braced within  the  provisions  of  the  com- 
sation  acts  generally.55  Whether  or  not 
a  workman  is  an  employee  or  an  inde- 
pendent contractor  will  be  determined 
by  the  rule  which  would  be  applicable 
had  the  case  arisen  in  an  ordinary  ac- 
tion at  law.56 

An  employee  of  an  independent  con- 
tractor intrusted  with  the  entire  work 
of  furnishing  the  ways,  works,  machin- 


(1914)  217  Mass.  5,  104  N.  E.  438,  4  N.  C. 
C.  A.  556. 

53Blynn   v.   Pontiac    (1915)    —  Mich.  — , 
151  N.  W.  681,  8  N.  C.  C.  A.  793. 

54  Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co. 
v.  Industrial  Commission    (1913)    153  Wis. 
552,  141  N.  W.  1119,  Ann.  Cas.  1914D,  655, 
3  N.  C.  C.  A.  707. 

55  Independent  contractors  are  not  with- 
in   the   provisions    of   the    New    York    act. 
Powley   v.   Vivian   &   Co.    (1915)    169  App. 
Div.  170,  154  N.  Y.  Supp.  426;  Rheinwald  v. 
Builders'   Brick   &   Supply   Co.    (1915)    168 
App.  Div.  425,  153  N.  Y.  Supp.  598. 

56  An  employee  of  a  timber  company  may 
be  found  to  be  a  workman  within  the  mean- 
ing of  the  Minnesota  statute  although  he 
was  paid  at  a  specified  price  per  piece,  and 
could    work    as    much    or    as    little    as    he 
wished,  could  lay  off  whenever  and  as  long 
as  he  chose,  could  work  as  many  or  as  few 
hours  a   day  as  he   saw  fit,  could  proceed 
in  his   own   way   so  far  as   his   method   of 
working  was  concerned,  and  could  quit  final- 
ly whenever  he  elected  to  do  so,  and  was 
assigned  a  specific  tract  of  land  upon  which 
to  work,  where  the  company  required  him 
to  cut  the  timber  clean   as  he  went,  and 
reserved  the  right  to  control  and  supervise 
his  work  at  least  to  the  extent  necessary 
to  prevent  waste  and  loss,  and   inspected 
his  work  from  time  to  time,  and  occasional- 
ly directed  him  to  remedy  the  defects  there- 
in, and  had  the  right  to  discharge  him  at 
any  time.    State  ex  rel.  Virginia  &  R.  Lake 
Co.  v.  District  Ct.  (1914)  128  Minn.  43,  150 
N.  W.  211,  7  N.  C.  C.  A.  1076. 

57  Kennedy  v.  David  Kaufman  &  Sons  Co. 
L.R.A.1916A. 


ery,  or  plant  for  doing  the  work,  without 
the  control,  co-operation,  assistance,  or 
interference  of  the  owners,  is  not  en- 
titled to  compensation  for  injuries,  from 
the  owner.57  Employees  of  independent 
contractors  have,  however,  been  held  to 
be  under  the  protection  of  the  Massa- 
chusetts act.58 

c.  "Casiial"  employees. 

For  English  cases  defining  this  term, 
see  ante,  120. 

The  English  statute  provides  that  the 
word  "workman,"  within  the  meaning 
of  the  statute,  does  not  include  persons 
"whose  employment  is  of  a  casual  na- 
ture, and  who  are  employed  otherwise 
than  for  the  purposes  of  the  employer's 
trade  or  business."  Provisions  of  similar 
import  are  to  be  found  in  most  of  the 
American  statutes,  but  the  language  used 
in  some  of  the  statutes  is  susceptible  of 
a  different  construction.  The  Massa- 
chusetts statute  does  not  apply  where 
the  employee's  employment  "is  but  cas- 
ual, or  is  not  in  the  usual  course"  of 
the  trade  or  occupation  of  the  employer. 
The  distinction  between  the  two  acts  has 
been  noted  by  the  Massachusetts  su- 
preme judicial  court.59  The  court  held, 


(1914)  —  N.  J.  L.  — ,  91  Atl.  99.  The  court 
said:  "What  the  plaintiff  claims  is  that 
in  all  cases  where  the  entire  work  is  left 
to  an  independent  contractor,  the  employer 
is  liable  for  defects  in  ways,  works,  ma- 
chinery, or  plant  belonging  to  or  furnished 
by  such  independent  contractor.  This  is 
not  the  proper  construction  of  the  statute, 
but,  on  the  contrary,  the  employer  is  only 
liable  where  he  furnishes  the  ways,  works, 
machinery,  or  plant  in  aid  of  part  execu- 
tion of  his  work,  and  does  not  make  him 
liable  where  the  entire  work  is  left  to  an 
independent  contractor  who  furnishes  the 
ways,  works,  machinery,  or  plant,  over 
whose  negligent  conduct  in  not  remedying 
defects  the  employer  has  no  control." 

58  An  employee  of  an  independent  con- 
tractor is  entitled  to  compensation  from 
the  insurer  of  the  principal  employer  for 
injuries  received  under  circumstances  which 
would  have  made  the  insurer  liable  h.ad  the 
employee  been  in  the  immediate  employ- 
ment of  the  principal  employer,  although 
the  independent  contractor  carried  no  in- 
surance. Sundine's  Case  (1914)  218  Mass. 
1,  post,  318,  105  N.  E.  433,  5  N.  C.  C.  A. 
616. 

59Gaynor's  Case  (1914)  217  Mass.  86, 
post,  363,  104  N.  E.  339, 4  N.  C.  C.  A.  502,  the 
court  said:  "Manifestly  its  effect  is  to 
narrow  the  scope  of  our  act  as  compared 
with  the  English  act.  No  one  whose  em- 
ployment is  'casual'  can  recover  here,  while 
there  one  whose  employment  is  'of  a  casual 
nature'  comes  within  the  act,  provided  it  is 
also  for  the  purpose  of  the  employer's  trade 
or  business.  It  is  possible  that  a  distinc- 


248 


WOTvK  MEN'S  COMPENSATION. 


however,  that  whether  tested  by  the  Eng- 
lish act  or  by  the  Massachusetts  act, 
a  waiter  employed  by  a  caterer  to  serve 
at  a  particular  banquet  for  a  specified 
price  and  transportation,  with  freedom 
to  go  where  he  will  when  the  service  is 
finished,  is  not  within  the  protection  of 
the  act.60 

An  employee  hired  for  no  fixed  dura- 
tion of  time  and  for  no  particular  job, 
but  only  hired  as  the  employer  might 
wish  work  to  be  done,  is  not  within  the 
protection  of  the  Massachusetts  stat- 
ute.61 An  employment  is  not  "casual" 
within  the  meaning  of  the  New  Jersey 
act  where  one  is  employed  to  do  a  par- 
ticular part  of  a  service  recurring  some- 
what regularly,  with  a  fair  expectation  of 
a  continuance  for  a  reasonable  period.62 
JN'or  is  the  employment  of  a  workman  for 
an  indefinite  period  of  time,  at  so  much 
per  day ;  63  and  employment  for  an  in- 


definite time  to  do  piece  work  may  be 
found  not  to  be  casual.64 

The  court  cannot  assume  that  an  em- 
ployment was  only  casual  where  the  In- 
dustrial Accident  Board  has  found  that 
the  employment  was  not  casual,  and  only 
excerpts  of  the  evidence  are  contained 
in  the  record,  although  such  excerpts 
tend  to  show  that  the  employment  was 
casual.65 

That  the  employment  of  a  workman  is 
casual  is  immaterial  if  he  is  employed 
in  the  usual  course  of  the  trade,  busi- 
ness, profession,  or  occupation  of  his  em- 
ployer.6Sa 

XXXVIII.  Who    are    "dependents." 

For  English  decisions  defining  this 
term,  see  ante,  121. 

Dependency,  within  the  provisions  of 
the  statute,  does  not  mean  absolute  de- 
pendency for  the  necessities  of  life ;  66  it 


tion  as  to  the  character  of  the  employment 
may  be  founded  upon  the  difference  be- 
tween the  modifying  word  'casual'  used  in 
our  act,  and  the  words  'of  a  casual  nature' 
in  the  English  act.  The  phrase  of  our  act 
tends  to  indicate  that  the  contract  for  serv- 
ice is  the  thing  to  be  analyzed,  in  order 
to  determine  whether  it  be  casual,  while 
in  the  English  act  the  nature  of  the  service 
rendered  is  the  decisive  test."  The  court 
went  on  to  say  that  the  word  "or,"  as  used 
in  the  portion  of  the  statute  quoted  above, 
is  used  in  a  disjunctive  sense,  and  is  not 
used  in  the  sense  of  "to  wit,"  that  is, 
identity  with,  or  explanation  of,  that  which 
goes  before. 

60  Gaynor's    Case     (Mass.)     supra.      The 
court  said:     "Even  the  decisions  under  the 
English  act  are  plain  to  the  effect  that  em- 
ployment   such    as    that    which    existed    in 
the  case  at  bar  there  [in  England]  would  be 
treated  not   only  as   casual   in  the   respect 
of  the  contract  for  hiring,  but  also  casual 
in  its  nature." 

61  The  employment  by  a  coal  dealer  of  a 
teamster,  with  his  horses  and  wagon,  to  de- 
liver   coal,    is    casual    where    the    evidence 
showed    that    at    one   period    he    had    been 
employed  for  five  days,  and  about  a  year 
afterwards   was   employed   for   a   period   of 
eight  days  which  were  not  consecutive,  and 
the  teamster  was  hired  for  no  fixed  dura- 
tion of  time  and   for  no  specified  job,  but 
when  the  coal  dealer  wanted  him  he  would 
say  to  him  simply  that  he  wanted  him  to 
come    up    and    help    him.      Cheevers's    Case 
(1914)    219  Mass.  244,  106  N.  E.  861.     In 
speaking  of  the  limitation  as  to  casual  em- 
ployment,   the    court    said:      "The    scheme 
created  by  the  workmen's  compensation  act 
is    a    scheme    of    insurance    in    which    the 
premiums  to  be  paid  by  the  employer  are 
based  upon  the  wages  paid  by  him  to  his 
employees.     It  may  have  been  thought  im- 
practicable to  work  out  a  scheme  of  insur- 
ance if  persons  who  were  only  occasionally 
employed  are  to  be  included  among  those 
L.R.A.1916A 


insured.     This   limitation   was   repealed  by 
Stat.  1914,  chap.  708,  §  13." 

62  The  work  of  a  longshoreman  who  was 
frequently   called   upon   by  the   defendants 
to  serve  them  in  loading  or  unloading  their 
ship  was  not  casual.     Sabella  v.  Brazileiro 
(1914)   86  N.  J.  L.  505,  91  Atl.  1032,  6  N. 
C.  C.  A.  958,  affirmed  in  —  N.  J.  — ,  94  Atl. 
1103. 

63  A  workman  employed  for  an  indefinite 
period  at  $5   per  day,   to  work   on   a   con- 
tract for  the  erection  of  a  structural  steel 
building,    is   not    in   a    casual    employment. 
Scott  v.  Payne  Bros.  (1913)  85  N.  J.  L.  446T 
89  Atl.  927,  4  N.  C.  C.  A.  682. 

64  The  trial  judge  may  find  that  the  em- 
ployment   was    not    casual    where    the    pe- 
titioner   testified    that    the    employer    told 
him  to  "come  Monday  morning,  I  will  give 
you  some  work  to  shave  the  skins;"  that 
the  price  was  to  be  so  much  a  dozen,  and 
if    the    petitioner    did    better    work,    more. 
Schaeffer  v.  De  Grottola  (1913)   85  N.  J.  L; 
444,  89  Atl.  921,  4  N.  C.  C.  A.  582. 

65  King's  Case   (1915)  220  Mass.  290,  107 
N.  E.  959. 

65a  Part  of  the  business  of  a  municipal 
corporation  is  the  improvement  and  repair 
of  its  public  streets,  and  a  laborer  engaged 
in  improving  and  repairing  the  streets  of 
a  city  is  within  the  protection  of  the  Min- 
nesota act,  although  his  employment  is- 
but  casual.  State  ex  rel.  Northfield  v.  Dis- 
trict Court  (1915)  —  Minn.  — ,  155  N.  W, 
103. 

66  It   is  not   essential   to   the   right   of  a 
dependent  who  seeks  to  recover  compensa- 
tion   under   the   New   Jersey   act,   that   he 
should    be    actually    or    entirely    dependent 
upon  the  earnings  of  the  deceased  for  the 
necessities  of  life,  but  it  is  sufficient  if  it 
appears    that    he    is   a   dependent    in    fact. 
Havey  v.  Erie  R.  Co.  (1915)  —  N.  J.  L.  — , 
95  Atl.  124. 

Evidence  that  a  deceased  workman  con- 
tributed to  the  support  of  his  mother,  and 
that  she,  while  not  immediately  dependent 


WHO  ARE  DEPENDENTS. 


249 


is  sufficient  that  contributions  of  the 
workman  are  looked  to  for  support  in 
the  maintenance  of  the  dependent's  ac- 
customed mode  of  living.67 

The  mere  fact  that  the  claimant  has 
some  property  of  his  own  does  not  neces- 
sarily prevent  him  from  being  depend- 
ent upon  the  earnings  of  the  deceased 
workman.68  And  the  fact  that  he  is 
in  part  supported  by  other  members  of 
the  family  is  not  conclusive  as  a  mat- 
ter of  law  against  his  claim.69  A  sister 
may  be  found  to  be  a  dependent  upon 
her  deceased  brother,  where  he  and  an- 
other brother  made  their  home  with 
her,  spending  their  spare  time  from  Sat- 
urday until  Monday  at  her  house,  and 
each  gave  her  $5  a  week,  which  was 


materially  more  than  the  mere  value  of 
the  board  and  lodging  for  the  thirty- 
six  hours  and  the  care  of  their  extra 
clothing  for  the  rest  of  the  week.70  So, 
a  mother  may  be  found  to  be  an  actual 
dependent  upon  the  wages  of  her  de- 
ceased son,  although  her  husband '  is 
living  and  supports  her  in  part.71 

That  a  daughter  is  able  to  support  her- 
self does  not,  as  a  matter  of  law,  pre- 
vent her  from  recovering  compensation 
for  the  death  of  her  father,  where  as  a 
matter  of  fact  she  had  been  wholly  sup- 
ported by  him.72  To  constitute  "total 
dependency"  within  the  meaning  of  the 
Minnesota  act,  it  is  not  necessary  that 
the  dependent  be  supported  wholly  out 
of  the  wages  of  the  employee's  employ- 


for  sustenance  upon  such  contributions, 
was,  because  of  advancing  years,  condition 
of  mind,  lack  of  regular  employment  and 
of  property,  liable  to  become  dependent,  is 
sufficient  to  sustain  a  finding  that  she  was 
a  dependent  upon  the  son's  earnings  within 
the  meaning  of  the  Connecticut  act.  Hotel 
Bond  Go's  Appeal  (1915)  89  Conn.  143,  93 
Atl.  245. 

67Dazy  v.  Apponaug  Co.  (1914)  36  R.  I. 
81,  89  Atl.  160,  4  N.  C.  C.  A.  594. 

A  dependent,  under  the  Connecticut  act, 
is  not  necessarily  one  to  whom  the  contri- 
butions of  the  injured  or  deceased  work- 
man are  necessary  to  his  or  her  support  of 
life;  the  test  is  whether  the  contributions 
were  relied  upon  by  the  dependent  for  his 
or  her  means  of  living,  judging  this  by  the 
class  and  position  in  life  of  the  dependent. 
Hotel  Bond  Go's  Appeal  (Conn.)  supra. 

68  The  fact  that  a  daughter  who  for  three 
years  before  her  father's  death  had  had  no 
income  except  money  allowed  her  by  her 
father,  and  wages  for  two  weeks,  which 
were  so  small  that  they  may  be  disregarded, 
and  who  was  too  ill  to  work,  had  at  her 
father's  death  saved  $100  from  the  money 
given  her  by  him,  does  not  prevent  a  find- 
ing that  she  was  wholly  dependent  upon 
her  father  at  the  time  of  his  death.  Re 
Carter  (1915)  221  Mass.  105,  108  N.  E. 
911. 

The  parents  of  a  deceased  workman  may 
be  found  to  be  "wholly  dependent"  upon 
him  for  support  within  the  meaning  of  the 
Minnesota  act,  where  both  parents  were 
helpless  invalids,  although  they  owned  their 
own  home,  and  a  married  daughter  lived 
with  them,  doing  all  the  housework,  and 
caring  for  her  invalid  father  and  mother 
gratuitously.  State  ex  rel.  Splady  v.  Dis- 
trict Ct.  (1915)  128  Minn.  338,  151  N.  W. 
123.  The  court  said:  "It  may  certainly 
be  argued  with  some  force  that  one  who 
owns  his  home,  or  for  whom  others  perform 
friendly  services,  is  not,  technically  speak- 
ing, 'wholly  dependent'  upon  the  cash  re- 
ceived from  the  wages  of  the  worker  of  the 
family.  Nor  is  one  who  receives  help  from 
a  charitable  organization,  or  from  neighbors. 
But  we  cannot  suppose  that  the  legislature 
L.R.A.1916A. 


|  intended  that  such  a  person  should  be  con- 
1  sidered  only  a  'partial  dependent.' " 

69  A  mother  and  sister  of  a  deceased 
workman  may  be  found  to  be  wholly  de- 
pendent upon  him  within  the  provisions 
of  the  statute,  where  the  proof  was  that 
they  were  residents  of  Italy,  and  were  un- 
able, by  reason  of  failing  eyesight,  to  fol- 
low their  usual  occupation,  and  were  forced 
to  rely  wholly  upon  him  for  means  of  sub- 
sistence, although  another  sister  earned  six 
or  seven  cents  a  day,  and  an  aunt  of  the 
deceased  occasionally  made  gratuitous  re- 
mittances to  the  mother,  where  it  was 
shown  that  the  remittances  were  mere 
gratuities,  and  that  the  pittance  earned  by 
the  sister  was  hardly  sufficient  for  her 
own  maintenance  and  that  no  part  was  paid 
to  the  dependents,  who  never  relied  either 
upon  the  sister  or  the  aunt  for  aid. 
Caliendo's  Case  (1914)  219  Mass.  498,  107 
N.  E.  370. 

A  sister  of  a  deceased  workman  may  be 
found  to  be  a  dependent  upon  his  earn- 
ings where  the  greater  portion  of  his  earn- 
ings went  into  a  family  fund  contributed 
to  by  other  members  of  the  family  and  the 
sister  was  a  delicate  school  girl  of  15  years 
of  age  who  earned  nothing  and  had  no 
independent  means  of  support  and  the 
father  was  in  poor  health  and  his  earnings 
which  were  also  turned  into  the  family 
fund  were  not  sufficient  to  support  the 
dependent  members  of  the  family.  Walz 
v.  Holbrook  T.  &  R.  Corp.  (1915)  —  App. 
Div.  — ,  155  N.  Y.  Supp.  703. 

70Hammill  v.  Pennsylvania  R.  Co.  (1915) 
-  N.  J.  L.  — ,  94  Atl.  313. 

71  The  trial  court  may  find  that  a  mother 
was  an  actual  dependent  upon  the  earnings 
of  her  deceased  son,  although  her  husband 
was  living,  where  the  deceased  contributed 
$5  per  week  to  the  family  fund,  the  hus- 
band earned   but  $11   per  week,  and  there 
were  seven  other  children,  all  too  young  to 
earn   money,  and  the  family  had  no  other 
property  or  income.     Krauss  v.  George  H. 
Fritz   &   Son    (1915)    --   N.   J.   — ,   93   Atl. 
578. 

72  That    but    for    a    daughter's    sense    of 
duty  because  she  thought  that  her  father 


250 


WORKMEN'S  COMPENSATION. 


ment.73  And  it  is  not  necessary  that 
the  contributions  of  the  workman  shall 
have  been  made  at  regular  intervals  or 
in  stated  amounts.7* 

To  come  within  the  phrase  "actual 
dependent,"  as  used  in  the  New  Jersey 
statute,  it  is  not  necessary  that  the  claim- 
ants of  a  deceased  workman  should  have 
been  entirely  dependent  upon  the  de- 
ceased; if  they  were  partially  depend- 
ent, they  are  dependent  in  fact.75 

A  father  who  is  able  to  save  money 
out  of  his  own  wages,  and  makes  use 
of  the  net  profits  from  his  son's  wages, 
after  providing  the  latter  with  clothes, 
board,  spending  money,  merely  to  in- 
needed  her  care,  she  might  have  continued 
to  earn  enough  for  her  own  support  and 
to  be  independent  of  him,  cannot  be  de- 
cisive, as  a  matter  of  law,  against  her  claim, 
where  all  of  her  support  came  from  him. 
Herrick's  Case  (1914)  217  Mass.  Ill,  104  N. 
E.  432,  4  N.  C.  C.  A.  554. 

73  A  widowed  mother  without  means,  who 
is    supported    by    her    son,    partly    by    the 
wages   of   his   employment,   and   partly   by 
the  yield  of  his  land,  is  wholly  dependent 
upon  her  son  for  support  within  the  mean- 
ing  of  the   Minnesota   act.     State   ex   rel. 
Crookston  Lumber  Co.  v.  District  Ct.  (1915) 

-  Minn.  — ,  154  N.  W.  509. 

74  Partial  dependency   may  exist   though 
the   contributions    made    by    the    workman 
were  at  irregular  intervals  and  in  irregular 
amounts,  and  though  the  dependents  have 
other  means  of  support.     Hotel  Bond  Go's 
Appeal  (1915)  89  Conn.  143,  93  Atl.  245. 

75Muzik  v.  Erie  R.  Co.  (1913)  85  N.  J.  L. 
129,  89  Atl.  248,  4  N.  C.  C.  A.  732,  affirmed 
in  86  N.  J.  L.  695,  92  Atl.  1087 ;  Jackson  v. 
Erie  R.  Co.  (1914)  86  N.  J.  L.  550,  91  Atl. 
1035,  6  N.  C.  C.  A.  944. 

76  Under  the  Rhode  Island  statute,  a 
father  who  was  able  out  of  his  wages  to 
support  himself  and  wife,  and  save  $3  or  $4 
per  week,  is  not  a  dependent  upon  the  son, 
although  the  latter  gave  his  pay  to  his 
parents  every  week,  and  the  father  received 
a  net  profit  of  some  $5  a  week  from  his 
son's  wages  over  and  above  the  amount 
given  him  for  spending  money  and  his 
board,  lodging,  and  clothing.  Dazy  v.  Ap- 
ponaug  Co.  (1914)  36  R.  I.  81,  89  Atl.  160, 
4  N.  C.  C.  A.  594.  The  court  said:  "The 
test  of  dependency  is  not  whether  the  pe- 
titioner, by  reducing  his  expenses  below  a 
standard  suitable  to  his  condition  in  life, 
could  secure  a  subsistence  for  his  family 
without  the  contributions  of  the  deceased 
son,  but  whether  such  contributions  were 
needed  to  provide  the  family  with  the  ordi- 
nary necessaries  of  life  suitable  for  persons 
in  their  class  and  position.  .  .  .  The  ex- 
pression 'dependent'  must  be  held  to  mean 
dependent  for  the  ordinary  necessaries  of 
life  for  a  person  of  his  class  and  position, 
and  does  not  cover  the  reception  of  bene- 
fits which  might  be  devoted  to  the  estab- 
lishment or  increase  of  some  fund  which 
he  might  desire  to  lay  aside." 
L.R.A.1916A. 


crease  his  savings,  is  not  "dependent" 
upon  such  wages  within  the  meaning  of 
the  statute.76 

Ordinarily  a  widow  is  conclusively 
presumed  to  be  dependent ;  77  and  this 
presumption  also  exists  in  the  case  of 
minor  children.78  But  the  conclusive 
presumption  of  dependency  of  children 
provided  for  in  the  Massachusetts  act  is 
conditioned  upon  the  nonexistence  of  a 
surviving  dependent  parent.79  Whether 
or  not  a  woman  who  has  been  living  apart 
from  her  husband  is  dependent  upon  him 
is  a  question  of  fact.8"  The  conclusive 
presumption  of  dependency  does  not 
exist  in  such  a  case.81  So,  a  deserted 

77Coakley's  Case  (1913)  216  Mass.  71, 
102  N.  E.  930,  Ann.  Cas.  1915A,  867,  4  N.  C. 
C.  A.  508. 

78  The  presumption  of  dependency  of  the 
widow   and  daughter  of  a  deceased  work- 
man is  not  rebutted  by  evidence  that  the 
deceased    did    not    work    steadily,    that   he 
was    inclined    to    dissipation,    and    that   he 
did  not  live  at  home  all  of  the  time,  and 
that  his  wife's  position  was  not  very  satis- 
factory, where  there  was  evidence  that  when 
he   did  work  he  contributed   a   substantial 
part   of  his   earnings   towards   the   support 
of  his  wife  and  daughter,  and  that  he  and 
his  wife  were  not  living  in  a  state  of  legal 
separation  in  any  sense  of  the  word.    Tay- 
lor v.  Seabrook  (1915)  —  N.  J.  L.  — ,  94  Atl. 
399. 

A  daughter  of  tender  years  of  a  deceased 
employee  is  conclusively  presumed  to  be 
dependent,  where  her  mother  is  also  dead, 
although  the  deceased  leaves  a  widow  by 
his  second  marriage.  Coakley's  Case 
(Mass.)  supra. 

79  Children   of  a   deceased   workman   who 
are  also  the  children  of  the  widow  are  not 
conclusively  presumed  to  be  dependent,  be- 
cause as  to  them  there  is  a  surviving  par- 
ent.     (Mass.)    Ibid. 

In  the  absence  of  evidence  to  show  the 
dependency  of  a  minor  child,  it  will  not 
share  with  its  mother  in  a  fund  recovered 
under  the  workmen's  compensation  act. 
McNicol's  Case  (1913)  215  Mass.  497,  post, 
306,  102  N.  E.  697,  4  N.  C.  C.  A.  522. 

80  Whether  or  not  a  servant  accidentally 
killed    in    his    employment,    and    his    wife, 
whom   he   left    in   a   foreign    county,   were 
living  together,  is  a  question  of  fact  to  be 
determined  by   the   commission,   under   the 
Wisconsin   act.     Northwestern  Iron   Co.   v. 
Industrial  Commission   (1913)   154  Wis.  97, 
post,  366,  142  N.  W.  271,  Ann.  Cas.  1915B, . 
877. 

81  The    conclusive    presumption     that     a 
wife    is    totally   dependent   upon    her    hus- 
band  does  not   apply   to   a   case  where   a 
woman   is   actually   living   apart   from   her 
husband,  although  this  condition  may  exist 
without  fault  on  her  part.    Gallagher's  Case 
(1914)   219  Mass.  140,  106  N.  E.  558.     In 
such  a  case  the  Industrial  Accident  Board 
should  have   determined  as  a  question  of 
fact  the  matter  of  dependency,  without  ref- 


WHO  ARE  DEPENDENTS. 


251 


«vlfe  who  at  the  time  of  her  husband's 
death  had  for  more  than  six  years  sup- 
ported herself  without  compensation 
from  him,  or  knowledge  of  his  where- 
abouts, is  not  an  actual  dependent  with- 
in the  meaning  of  the  12th  paragraph  of 
the  New  Jersey  act.82  And  where  the 
wife  and'  child  of  a  deceased  workman 
were  both  living  apart  from  him  at  the 
time  of  his  death,  neither  of  them  can  be 
"conclusively  presumed"  to  have  been 
wholly  dependent  upon  him  for  sup- 
port.83 But  a  wife  who  was  left  in  a 
foreign  land  when  her  husband  came  to 
this  country  is  within  the  provision  of 
the  workmen's  compensation  act,  if  he 
sent  her  money  for  her  support,  although 
he  has  been  here  several  years,  and  no 
definite  plans  for  reunion  exist.84 

A  mother  cannot  recover  compensation 
for  the  death  of  an  adult  unmarried  son, 
where  he  lived  apart  from  her,  and  had 
not  contributed  anything  in  support  of 
her,  and  there  was  in  force  no  order  of 
the  court  compelling  him  to  support 
her.85  Dependent  step-children  who 
have  been  supported  by  a  deceased  work- 
man are  included  within  the  word  "chil- 
dren" as  used  in  the  act  of  1911.86 

A  woman  living  in  adulterous  inter- 
course with  a  man  was  not  "a  member  of 
the  family"  of  the  man,  although  a  mar- 
riage cermony  had  been  performed  and 


gone  through  with,  but  the  man  at  the 
time  was  incompetent  to  contract  mar- 
riage because  he  had  a  wife  or  former 
wife  from  whom  he  had  not  been  di- 
vorced one  year,  although  the  woman 
was  not  aware  of  the  impediment,  and 
believed  that  she  was  lawfully  married.87 

There  is  an  apparent  conflict  of  au- 
thority upon  the  question  whether  or  not 
nonresident  aliens  are  entitled  to  com- 
pensation for  the  death  of  a  workman 
upon  whose  wages  they  were  depend- 
ent. It  has  been  expressly  held  that 
nonresident  alien  dependents  are  not  en- 
titled to  compensation  under  the  New 
Jersey  act.88  It  was  also  held  in  the 
same  case  that  such  nonresident  alien  de- 
pendents had  no  cause  of  action  for  the 
death  of  the  workman,  where  the  em- 
ployer had  elected  to  come  in  under  the 
New  Jersey  act.  Compensation  has  been 
awarded,  however,  in  other  jurisdictions 
to  nonresident  alien  dependents,  but  the 
question  whether  such  dependents  were 
within  the  purview  of  the  statute  was 
not  discussed.89 

A  parent  can  be  dependent  upon  the 
support  of  a  minor  child  just  as  much 
as  upon  the  support  of  an  adult  child.89a 

There  is  no  conclusive  presumption 
that  the  nonresident  parents  of  a  de- 
ceased workman  are  dependent  upon  his 
earnings.90  The  question  whether  or  not 


erence  to  the  conclusive  presumption  cre- 
ated by  the  act  in  case  of  wives  living  with 
their  husbands. 

The  conclusive  presumption  that  a  wife 
is  wholly  dependent  upon  her  husband  "with 
whom  she  lived  at  the  time  of  her  death," 
as  contained  in  part  2,  §  7,  of  the  Massa- 
chusetts compensation  act,  is  not  present 
where  the  couple  were  voluntarily  living 
apart,  and  the  wife  was  supporting  herself 
out  of  her  own  earnings,  and  the  husband 
had  not  spent  any  money  for  her  support 
for  upwards  of  a  year,  although  at  the 
time  he  left  her  he  voluntarily  gave  her  a 
sum  of  money,  and  promised  to  support  her 
and  her  child.  Nelson's  Case  (1914)  217 
Mass.  467,  105  N.  E.  357,  5  N.  C.  C.  A.  694. 

82  Batista  v.  West  Jersey  &  S.  R.  Co. 
(1913)  —  N.  J.  L.  — ,  88  Atl.  954,  4  N.  C.  C. 
A.  781. 

SSBentley's  Case  (1914)  217  Mass.  79,  104 
N.  E.  432,  4  N.  C.  C.  A.  559. 

84  Northwestern  Iron  Co.  v.  Industrial 
Commission  (1913)  154  Wis.  97,  post,  366, 
142  N.  W.  271,  Ann.  Cas.  1915B,  877. 

sspinel  v.  Rapid  R.  System  (1915)  - 
Mich.  — ,  150  N.  W.  897.  The  court  said: 
"The  most  that  can  be  said  of  the  statute, 
with  reference  to  the  question  involved,  is 
that  by  its  terms  a  court  of  competent 
jurisdiction  might  have,  under  certain  con- 
tingencies, compelled  the  deceased,  if  able, 
to  contribute  to  the  support  of  his  mother." 

86  Newark  Paving  Co.  v.  Klotz  (1914)   85 
N.  J.  432,  91  Atl.  91. 
L.R.A.1916A. 


87  Armstrong  v.  Industrial  Commission 
(1915)  —  Wis.  — ,  154  N.  W.  845. 

88Gregutis  v.  Waclark  Wire  Works 
(1914)  —  N.  J.  L.  — ,  91  Atl.  98.  The  court 
said:  "The  power  of  the  legislature  to 
give  or  withhold  a  right  of  action  in  such 
a  case,  and  to  declare  to  whom  and  in  what 
amount  compensation  shall  be  made,  can- 
not be  doubted." 

89  The  mother  and  sister  of  a  deceased 
workman,  who  were  residents  of  Italy,  were 
held  to  be  dependent  in  Caliendo's  Case 

(1914)  219  Mass.  498,  107  N.  E.  370,  but 
the  fact  that  they  resided  abroad  was  not 
discussed  by  the  court. 

In  Vujic  v.  Youngstown  Sheet  &  Tube 
Co.  (1914)  220  Fed.  390,  an  award  of  com- 
pensation was  made  to  the  nonresident 
alien  dependents  of  a  deceased  workman. 
This  decision  was  under  the  Ohio  statute, 
and  there  is  no  discussion  of  the  question 
whether  alien  nonresident  dependents  are 
entitled  to  recover. 

In  State  ex  rel.  Crookston  Lumber  Co.  v. 
District  Ct.  (1915)  —  Minn.  — ,  154  N.  W. 
509,  compensation  for  the  death  of  an  em- 
ployee was  awarded  to  his  widowed  mother, 
residing  in  Norway,  where  the  deceased 
had  formerly  resided;  but  no  question  was 
raised  as  to  the  right  of  nonresident  aliens 
to  compensation. 

89a  Friscia  v.  Drake  Bros.  Co.  (1915)  167 
App.  Div.  496,  153  N.  Y.  Supp.  392. 

9"  Garcia  v.  Industrial  Acci.  Commission 

(1915)  —  Cal.  — ,  151  Pac.  741. 


252 


WORKMEN'S  COMPENSATION. 


such  near  relatives  as  parents,  children, 
brothers,  and  sisters  are  dependent,  is  a 
question  of  fact,91  and  the  finding  of  the 
commission  or  board  or  trial  court  will 
not  be  disturbed  if  there  is  evidence  to 
support  it.92 

The  statute  does  not  require  that  the 
award  shall  be  apportioned  between  the 
respective  dependents,  except  in  cases 
where  there  is  a  special  application  made 
for  that  purpose.93  The  insurer  is  not 


entitled  to  be  heard  upon  the  question  of 
the  division  of  the  payment.93" 

The  consul  of  Austria  Hungary  is  a 
proper  person  to  whom  to  pay  an  award 
of  compensation  to  the  widow  and  chil- 
dren of  the  deceased  employee,  who  are 
residents  and  citizens  of  that  country.9* 

A  few  cases  have  passed  upon  the  ques- 
tion as  to  how  the  compensation  is  to  be 
divided  in  cases  in  which  there  are  more 
than  one  dependent.96 


91  Whether  or  not  a  mother  was  depend- 
ent upon  the  earnings  of  a  deceased  son  is 
a  question  of  fact.    Hotel  Bond  Go's  Appeal 
(1915)  89  Conn.  143,  93  Atl.  245. 

Whether  or  not  a  daughter  was  dependent 
wholly  or  partly  upon  her  deceased  father 
for  support  is  a  question  of  fact.  Herrick's 
Case  (1914)  217  Mass.  Ill,  104  N.  E.  432, 
4  N.  C.  C.  A.  554. 

Whether  or  not  the  father  and  mother 
and  minor  brothers  and  sisters  of  a  de- 
ceased workman,  living  together  in  the  same 
household,  and  subsisting  in  part  on  the 
earnings  contributed  by  the  deceased  to 
his  father,  and  applied  by  the  latter  to  the 
support  of  himself  and  his  family,  were 
actual  dependents  upon  the  deceased,  is  a 
question  of  fact  for  the  trial  judge  to  de- 
termine. Havey  v.  Erie  A.  Co.  (1915)  — 
N.  J.  L.  — ,  95  Atl.  124. 

Whether  the  mother  and  sister  of  a  de- 
ceased employee,  to  whose  support  he  had 
contributed,  were  wholly  dependent  upon 
him  within  the  provision  of  the  statute, 
is  a  question  of  fact.  Caliendo's  Case 
(1914)  219  Mass.  498,  107  N.  E.  370. 

If  there  is  any  evidence  to  support  the 
finding  of  the  commission  that  the  mother 
and  brother  of  a  deceased  workman  were 
dependent  upon  him  for  support  at  the 
time  of  his  death,  the  decision  of  the 
commission  is  final,  and  the  court  is  not 
authorized  to  review  such  findings.  Hen- 
dricks  v.  Seeman  (1915)  —  App.  Div.  — , 
155  N.  Y.  Supp.  638. 

92  The  finding  by  the  Industrial  Accident 
Board   that    a   sister   was   dependent   upon 
another  sister  will  not  be  disturbed  where 
the  evidence  as  to  the  independent  financial 
condition  of  the  applicant  was  very  vague 
and  unsatisfactory.     Buckley's  Case   (1914) 
218  Mass.  354,  105  N.  E.  979,  5  N-  C.  C.  A. 
613. 

Testimony  tending  to  establish  the  fact 
that  a  deceased  workman  gave  his  wages 
to  his  father,  and  that  such  wages  were 
devoted  to  the  support  of  the  family,  is 
sufficient  to  afford  a  legal  basis  for  the 
finding  of  the  trial  judge  that  the  members 
of  .  the  family,  consisting  of  the  father, 
mother,  and  minor  brothers  and  sisters 
of  the  deceased,  were  actual  dependents 
upon  the  earnings  of  the  deceased.  Havey 
v.  Erie  R.  Co.  (1015)  —  N.  J.  L.  — ,  95  Atl. 
124. 

Testimony  before  the  trial  judge  that 
each  of  the  eight  minor  brothers  and  sisters 
of  the  deceased  workman  was  under  the 
age  of  fourteen  years  will  support  an  award 
L.R.A.1936A. 


of  compensation  in  behalf  of  such  minor 
brothers  and  sisters  for  a  period  of  three 
years,  since  it  is  a  fair  inference  that  sev- 
eral of  such  children  are  of  very  tender 
age,  and  also  that  there  will  be  several  of 
them  at  the  expiration  of  the  three  years 
who  will  not  have  reached  the  age  of  six- 
teen, the  age  fixed  by  a  statute  when  pay- 
ments on  account  of  children  shall  cease. 
(N.  J.)  Ibid. 

Proof  that  an  employee's  mother  has  no 
property,  that  the  workman  and  his  sister 
took  care  of  her,  and  that  they  all  kept 
house  together,  is  sufficient  to  show  that 
the  mother  is  a  dependent.  Stevenson  v. 
Illinois  Watch  Case  Co.  (1914)  186  111.  App. 
418,  5  N.  C.  C.  A.  858. 

Proof  that,  prior  to  and  up  to  the  time 
of  his  death,  the  decedent  gave  his  earnings 
to  his  father,  and  that  the  father  had  no 
other  income  or  means  of  support,  justifies 
the  finding  that  the  father  was  an  actual 
dependent  of  the  deceased.  Reardon  v. 
Philadelphia  &  R.  R.  Co.  (1913)  85  X.  J.  L. 
90,  88  Atl.  970,  4  N.  C.  C.  A.  776. 

93  Taylor  v.  Seabrook   (1915)  —  N.  J.  L. 
— ,  94  Atl.  399. 

93aJanes's  Case  (1914)  217  Mass.  192, 
104  N.  E  556,  4  N.  C.  C.  A.  552. 

94  Vujic  v.  Youngstown  Sheet  &  Tube  Co. 
(1014)  220  Fed.  390. 

95  Payment   of  compensation   on   account 
of  the  death  of  a  workman  who  left  sur- 
viving  a   daughter   by   a   former   marriage, 
and  a  widow  with  children  by  the  second 
marriage,    should    be    equally    divided    be- 
tween the  widow  and  the  daughter  of  the 
earlier    marriage,    who    has    no    surviving 
parents.     Coakley's  Case   (1913)   216  Mass. 
71,  102  N.  E.  930,  Ann.  Cas.  1915A,  867,  4 
N.  C.  C.  A.  508. 

Under  the  New  York  statute  where  a 
workman  who  has  been  killed  leaves  a 
wife  *and  also  children  the  additional 
amount  which  is  allotted  for  the  support 
of  the  several  children  is  to  be  paid  to 
the  wife.  Woodcock  v.  Walker  (1915)  - 
App.  Div.  — ,  155  N.  Y.  Supp.  702. 

Where  a  deceased  workman  left  two 
minor  children  found  to  be  wholly  depend- 
ent upon  him,  and  one  of  the  children  died 
about  a  week  after  the  employee,  a  decree 
to  the  effect  that  the  sum  allowed  under 
the  act  should  be  paid  to  the  administrator 
of  the  estate  of  the  deceased  employee, 
and  by  him  be  divided  between  the  guardian 
of  the  surviving  minor  child  and  the  ad- 
ministrator of  the  deceased  minor  child, 
cannot  be  attacked  by  the  insurer.  Janes's- 


COMPENSATION  RECOVERABLE. 


253 


The  right  of  a  dependent  to  recover 
compensation  for  the  death  of  an  em- 
ployee is  dependent  upon  the  law  in  ef- 
fect at  the  time  of  the  death,  and  not 
on  the  law  in  effect  at  the  time  of  the 
accident.96 

XXXIX.  Compensation  recoverable, 
a.  By  dependents. 

It  has  been  stated  that  the  purpose  of 
the  Minnesota  act  was  to  secure  the  wid- 
ow or  dependent  next  of  kin  of  an  em- 
ployee who  should  meet  an  accidental 
death  while  engaged  in  the  line  of  his 
employment,  a  percentage  income  based 
upon  their  pecuniary  loss;  and  the  sal- 
ary or  compensation  actually  received  by 
such  employee  at  the  time  of  his  death 
represents  such  loss.97  Consequently,  in 
determining  compensation,  it  is  imma- 
terial whether  the  claimant  inherited 
anything  from  the  estate  of  the  em- 
ployee.98 

The  New  Jersey  statute  provides  for 
only  two  instances  in  which  the  award  of 
the  maximum  60  per  cent  of  the  wages 
is  authorized;  first,  where  there  are  or- 
phans; and  second,  where  there  is  a 
widow  with  five  or  more  children;  the 
award  should  not  exceed  50  per  cent  of 
the  deceased  wages  where  the  depend- 


ents consisted  of  a  father  and  mother 
and  minor  children.99  A  judgment  of 
compensation  for  the  dependents  of  a 
deceased  workman  should  be  for  the 
amount  of  the  weekly  payment  for  the 
prescribed  number  of  weeks,  and  not 
for  a  sum  equal  to  the  products  of  these 
two  numbers.1  Compensation  may  be 
awarded  under  the  New  Jersey  act  to 
a  mother  who  is  an  actual  dependent 
upon  a  deceased  son,  although  the  son 
leaves  no  widow,  and  no  specific  amount 
is  fixed  by  way  of  compensation  to  the 
mother  where  the  decedent  leaves  no 
widow.2  A  similar  rule  has  been  ap- 
plied in  a  case  arising  under  the  New 
York  statute  where  there  was  some  am- 
biguity in  the  language  of  the  statute.28 
But  a  childless  widow  is  entitled  to  but 
25  per  cent  of  the  wages  although  the 
deceased  left  a  father,  where  there  was 
no  proof  that  the  father  or  anyone  other 
than  the  widow  was  dependent.3 

Under  the  Illinois  act,  non-dependent 
brothers  and  sisters  are  not  entitled  to 
participate  with  a  dependent  mother  in 
the  compensation  recovered.8* 

The  minimum  compensation  for  the 
death  of  an  employee  to  a  person  wholly 
dependent  upon  him  is  $6  a  week  for  300 
weeks.4 


Case  (1914)  217  Mass.  192,  104  N.  E.  556, 
4  N.  C.  C.  A.  552.  The  court  said:  "The 
workmen's  compensation  act  does  not  con- 
template, either  in  its  letter  or  its  spirit, 
that  the  insurer  may  litigate  by  appeal  to 
this  court  the  proportions  of  the  division 
of  a  payment  among  those  claiming  to  be 
dependents  upon  a  deceased  employee,  when 
the  dependents  are  satisfied  and  do  not  ap- 
peal, and  when  the  insurer  cannot  by  any 
possibility  be  affected  in  its  pecuniary  re- 
sponsibility by  any  modification  of  the  or- 
der for  payment  permitted  by  law." 

»6State   ex    rel.    Carlson    v.    District   Ct. 
(1915)  —  Minn.  — ,  154  N.  W.  661. 

97  State  ex  rel.  Gaylord   Farmers'  Co-op. 
Creamery   Asso.   v.   District  Ct.   128   Minn. 
486,  151  N.  W.  182. 

98  State  ex  rel.  Crookston  Lumber  Co.  v. 
District  Ct.   (1915)  —  Minn.  — ,  154  N.  W. 
509. 

99Havey  v.  Erie  R.  Co.    (1915)   —  N.  J. 
L.  — ,  95  Atl.  124. 

1  Huzik  v.  Erie  R.  Co.  85  N.  J.  L.  129,  89 
Atl.  248,  4  N.  C.  C.  A.  732,  affirmed  in  86 
N.  J.  L.  695,  92  Atl.  1087. 

2  Quinlan  v.   Barber   Asphalt   Paving  Co. 
(1913)   84  N.  J.  L.  510,  87  Atl.  127;  Blanz 
v.  Erie  R  Co.  (1913)  84  N.  J.  L.  35,  85  Atl. 
1030;   McFarland  v.  Central  R.  Co.   (1913) 

84  N.  J.  L.  435,  87  Atl.  144,  4  N.  C.  C.  A. 
592;  Tischman  v.  Central  R.  Co.   (1913)   84 
N.  J.  L.  527,  87  Atl.  144,  4  N.  C.  C.  A.  736; 
Reardon  v.  Philadelphia  &  R.  R.  Co.  (1913) 

85  N.  J.  L.  90,  88  Atl.  970,  4  N.  C.  C.  A. 
776. 

In  Blanz  v.  Erie  R.  Co.  84  N.  J.  L.  35,  85 
L.R.A.1VHOA. 


Atl.  1030,  the  court  took  the  view  that  al- 
though the  section  of  the  statute  contain- 
ing the  schedule  of  compensation  contains 
no  specific  amount  to  be  paid  by  way  of 
compensation  to  the  mother  where  the  de- 
cedent leaves  no  widow,  yet  the  section  does 
provide  that  in  case  of  a  widow  alone,  the 
compensation  shall  be  25  per  cent  of  the 
wages,  and  that  in  the  case  of  a  widow 
i  and  father  or  mother,  it  shall  be  50  per 
!  cent  of  the  wages;  and  a  comparison  of 
these  two  clauses  leads  almost  irresistibly 
to  the  conclusion  that  the  intent  of  the 
legislature  was  to  allow  a  compensation  of 
25  per  cent  where  there  was  a  mother  alone 
or  a  father  alone. 

2a  The  New  York  statute  makes  provi- 
sion for  dependent  parents  although  the 
deceased  workman  left  no  surviving  wife 
or  children.  Friscia  v.  Drake  Bros.  Co., 
(1915)  167  App.  Div.  496,  153  N.  Y.  Supp. 
392. 

3  Miller  v.  Public  Service  R.  Co.  (1913) 
84  N.  J.  L.  174,  85  Atl.  1030.  Paragraph 
12  of  the  New  Jersey  act  contains  the  line, 
"if  a  widow  and  father  or  mother,  50  per 
centum  of  wages;"  but  the  court  took  the 
view  that  in  order  that  the  50  per  centum 
should  be  recoverable,  not  only  the  widow, 
but  also  the  father  or  mother,  must  be 
shown  to  be  dependents. 

3a  Matecny  v.  Vierling  Steel  Works  (1914) 
187  111.  App.  448. 

*  State  ex  rel.  Crookston  Lumber  Co.  v. 
District  Ct.  (1915)  —  Minn.  — ,  154  N.  W. 
509. 


254 


WORKMEN'S  COMPENSATION. 


A  commissioner  does  not  necessarily 
err  in  making  an  award  of  $5  a  week  in 
a  case  in  which  the  dependency  did  not 
approximate  that  sum.5 

Under  $.5  of  the  Washington  act,  in 
case  of  the  death  of  a  minor  compen- 
sation to  the  parent  does  not,  as  a  mat- 
ter of  course,  terminate  at  the  time  at 
which  he  would  have  arrived  at  the  age 
of  twenty-one  years;  if  the  parents  or 
parent  are  dependent,  then  the  com- 
pensation is  to  continue  during  the  de- 
pendence of  such  parents  or  parent.6 

The  statutory  amount  of  compensation 
in  case  of  death  is  not  subject  to  deduc- 
tion or  offset.7  An  injured  workman 
who,  upon  his  return  to  work,  receives 
from  the  employer  the  precise  amount  to 
which  he  is  entitled  as  compensation, 
and  executes  a  release  by  which  he  re- 
leases the  employer  from  all  claims 
"which  I  may  have"  under  the  compensa- 
tion act,  does  not  thereby  bar  his  wid- 
ow from  receiving  compensation  for  his 
death  which  subsequently  ensued  as  a 
result  of  the  injury.8  The  amount  which 
a  father  expends  for  the  maintenance 
and  support  of  his  son  is  not  to  be  de- 
ducted from  the  minimum  compensation 
recoverable  in  case  of  the  death  of  the 
son,  where  such  son  contributed  all  of 
his  earnings  to  his  father.9  Under  the 
Wisconsin  act,  there  is  to  be  no  reduc- 
tion because  of  the  advanced  age  of  an 
employee  in  cases  where  the  employee  is 
killed  and  compensation  is  sought  by  his 
dependents.10 

b.  By  incapacitated  employee. 

Under  the  English  act,  the  amount  of 
weekly  payments  to  be  awarded  to  an 


injured  employee  is  within  the  discre- 
tion of  the  arbitrator,  subject  only  to 
the  statutory  maximum,  and  these  pay- 
ments are  to  be  continued  until  the 
award  has  been  changed  upon  review. 
Some  of  the  American  statutes  follow 
the  English  method  of  fixing  the  com- 
pensation, while  others  adopt  various 
other  methods.  In  some,  specific  amounts 
based  on  the  employee's  earnings  are 
fixed  for  certain  specified  injuries.  As, 
for  instance,  if  the  employee  suffers  the 
loss  of  a  hand,  he  is  entitled  to  a  certain 
j  percentage  of  his  wages  for  a  specified 
period;  if  he  also  suffers  the  loss  of  a 
foot,  he  is  entitled  to  an  additional  per- 
centage of  his  wages  for  a  fixed  period. 
In  some  instances  the  two  awards  run 
concurrently,  and  in  others,  they  run  con- 
secutively. In  other  statutes  it  is 
provided  that  in  the  case  of  the  injury 
mentioned,  namely,  the  loss  of  a  hand 
and  of  a  foot,  there  will  be  but  one 
award  for  the  resulting  incapacity,  and 
the  payment  therefor  will  run  for  a  speci- 
fied time.  Owing  to  the  differences  in 
the  terms  of  the  statute,  and  to  the  dif- 
ferent situations  arising  from  the  vary- 
ing facts  in  the  particular  cases,  it  is 
very  difficult  to  deduce  any  general  prin- 
ciples as  to  the  awarding  of  compensa- 
tion in  the  case  of  injuries  to  workmen. 
Perhaps  the  most  definite  statement  that 
can  be  made  is  that  it  is  the  purpose  of 
all  other  statutes  to  render  compensa- 
tion because  of  incapacity  for  work,  and 
the  consequent  decrease  of  the  wage- 
earning  ability  of  the  employee;  and 
this  compensation  is  determined  with 
reference  to  the  earnings  of  the  employee 
and  the  extent  of  his  incapacity.11 


5  Hotel  Bond  Go's  Appeal  (1915)  —  Conn. 
— ,  93  Atl.  245. 

6Boyd  v.  Pratt  (1913)  72  Wash.  306, 
130  Pac.  371. 

7  State  ex  rel.  Crookston  Lumber  Co.  v. 
District  Ct.   (Minn.)   supra. 

The  amount  of  compensation  to  be  re- 
ceived by  a  widow  is  not  to  be  diminished 
by  any  compensation  paid  to  the  workman 
after  his  injury,  and  prior  to  his  death. 
Nichols's  Case  (1914)  217  Mass.  3,  104  N.  E. 
566,  Ann.  Cas.  1915C,  862,  4  N.  C.  C.  A. 
546. 

The  period  of  time  which  a  workman 
worked  after  his  injury,  and  before  his 
death,  is  not  to  be  deducted  from  the  300 
weeks  for  which  time  his  dependents  shall 
be  entitled  to  a  weekly  payment  equal 
to  one  half  of  his  average  weekly  wages. 
Cripp's  Case  (1914)  216  Mass.  586,  104  N. 
E.  565,  Ann.  Cas.  1915B,  828. 

8  Milwaukee  Coke  &  Gas  Co.  v.  Industrial 
Commission  (1915)  160  Wis.  247,  151  N.  W. 
245.     The  court  said  that  there  were  two 
grounds  for  this  ruling:      First,  that  there 
was  no  consideration   for  the  release,  and 
L.E.A.1916A. 


second,  that  no  act  of  the  employee  could 
estop  the  dependent,  since  the  act  pro- 
vided for  two  distinct  proceedings  one  by 
the  employee  during  his  lifetime,  and  an- 
other by  the  dependent  after  the  death  of 
the  employee. 

9  Where  the  minor  son  contributed  all  of 
his   earnings,   amounting  to   $5.67   a   week, 
to  his  father,  the  latter  is  entitled  to  com- 

|  pensation,  upon  the  son's  death,  to  the 
whole  of  the  minimum  compensation  of 
$4  a  week,  notwithstanding  that  about 
$2.50  per  week  was  expended  for  the  sup- 
port of  the  son.  Murphy's  Case  (1914) 
218  Mass.  278,  105  N.  E.  635,  5  N.  C.  C.  A. 
716. 

10  Milwaukee  v.  Ritzow,  158  Wis.  376,  149 
N.  W.  480.     The  court  held  that  although, 
in  case  of  permanent  injury,  there  were  to 
be  reductions  on  account  of  the   advanced 
age  of  the  employee,  the  term  "permanent 

!  injury"  is  used  in  the  ordinary  sense,  and 
cannot  be  extended  to  include  the  case  of 
injuries  resulting  in  death. 

11  In  State  ex  rel.  Crookston  Lumber  Co. 
v.  District  Ct.   (1915)  —  Minn.  — ,  154  N. 


BY  INCAPACITATED  EMPLOYEE. 


255 


"Incapacity    for    work,"    within    the 
meaning  of  the  statute,  includes  inabil- 
ity to  procure  work  because  of  the  in- 
jury, as  well  as  inability  to  do  the  work.12 
So,  a  finding  of  inability  to  secure  em- 
ployment because  of  the  injury  is  equiv-  j 
alent  to  the  finding  of  total  incapacity  j 
for  work.13    And  the  finding  of  the  Com-  | 
mittee  of  Arbitration  that  a  workman 
did  not  make  any  effort  to  obtain  employ- 
ment   is    immaterial    where    the   Indus- 
trial    Accident  Board  finds  that  during 
the  time  in  question  the  employee  was  | 
physically  unable  to  earn  anything.14 

In  the  New  Jersey  act  the  word  "dis- 


ability" is  not  restricted  to  the  mere 
loss  of  earning  power; 15  there  may  be  a 
statutory  "disability"  although  it  ap- 
pears that  the  earnings  of  the  petitioner 
have  not  been  impaired.16  But,  under 
the  New  York  statute,  compensation  is 
based  solely  on  loss  of  earning  power.17 
So,  under  the  Rhode  Island  statute,  if 
the  petitioner  has  presented  no  evidence 
showing  loss  of  earning  capacity,  the 
court  cannot  make  an  award  of  com- 
pensation.18 

And  under  the  Michigan  statute  there 
can  be  no  compensation  for  permanent 
injury  where  the  injured  member  is  not 


W.  509,  the  court  said:  "The  -scheme  of 
the  compensation  act  was  to  make  the 
amount  to  be  recovered  in  case  of  accident 
a  certain  fixed  sum,  and  by  thus  fixing  an 
arbitrary  standard  to  avoid  the  necessity 
of  embarking  on  a  troublesome  inquiry  as 
to  the  damages  actually  sustained." 

The  scheme  of  the  New  York  statute  is 
essentially  and  fundamentally  one  for  the 
creation  of  a  state  fund  to  secure  the  pay- 
ment of  a  prescribed  compensation  based 
on  earnings  for  disability  or  death  from  ac- 
cidental injuries  sustained  by  employees 
engaged  in  certain  enumerated  hazardous 
employments.  Jensen  v.  Southern  P.  Co. 
(1915)  215  N.  Y.  514,  post,  403,  109  N.  E. 
600. 

12  Sullivan's  Case  (1914)  218  Mass.  141, 
post,  378,  105  N.  E.  463,  5  N.  C.  C.  A.  735. 
The  court  relied  upon  two  English  decisions, 
Ball  v.  William  Hunt  &  Son  [1912]  A.  C. 
(Eng.)  496,  81  L.  J.  K.  B.  N.  S.  782,  106 
L.  T.  N.  S.  911,  28  Times  L.  R.  428,  56 
Sol.  Jo.  550,  5  B.  W.  C.  C.  459,  and  Mac- 
donald  v.  Wilson's  &  C.  Coal  Co.  [1912] 
A.  C.  (Eng.)  513,  81  L.  J.  P.  C.  N.  S.  188, 
106  L.  T.  N.  S.  905,  28  Times  L.  R.  431, 
56  Sol.  Jo.  550,  [1912]  S.  C.  74,  49  Scot. 
L.  R.  708,-  5  B.  W.  C.  C.  478.  The  court 
said:  "If,  as  in  this  case,  the  injured  em- 
ployee, by  reason  of  his  injury,  is  unable, 
in  spite  of  diligent  efforts,  to  obtain  em- 
ployment, it  would  be  an  abuse  of  language 
to  say  that  he  was  still  able  to  earn  money, 
that  he  still  had  a  capacity  for  work,  even 
though  his  physical  powers  might  be  such 
as  to  enable  him  to  do  some  kinds  of  work, 
if  practically  the  labor  market  were  not 
thus  closed  to  him.  He  has  become  unable 
to  earn  anything.  He  has  lost  his  capacity 
to  work  for  wages,  and  to  support  himself, 
not  by  reason  of  any  change  in  market 
conditions,  but  because  of  a  defect  which  is 
personal  to  himself,  and  which  is  the  di- 
rect result  of  the  injury  that  he  has  sus- 
tained. He  is  deprived  of  the  benefit  which 
the  statute  promises  to  him  if  he  is  told 
that,  because  he  could  do  some  work  if 
he  could  get  it,  he  is  not  under  an  inca- 
pacity for  work,  although  by  reason  of  his 
injury  he  can  obtain  no  opportunity  to 
work." 

Incapacity  for  work  within  the  meaning 
of  the  Kansas  statute  means  inability  to 
perform  work  and  also  inability  to  secure 
L.R.A.1916A. 


work  to  do.  Gorrell  v.  Battelle  (1914)  93 
Kan.  370,  144  Pac.  244. 

The  finding  by  the  Board  that  a  work- 
man "is  totally  incapacitated  for  all  work 
except  that  which  will  allow  him  to  be 
seated  while  engaged  in  its  performance" 
cannot  be  construed  as  a  finding  that  be- 
cause he  is  physically  able  to  perform  cer- 
tain labor,  he  is  not  totally  incapacitated 
for  work;  the  further  finding  of  the  Board 
that  the  workman  "has  endeavored  to  ob- 
tain and  has  been  unable  to  find  any  work 
which  the  incapacity  due  to  the  injury  will 
not  prevent  him  from  performing"  war- 
ranted a  finding  that  he  was  totally  inca- 
pacitated for  work,  although  he  had  a 
limited  physical  capacity  to  work  and  earn 
money.  Duprey's  Case,  (1914)  219  Mass. 
189,  106  N.  E.  686. 

iSStickley's  Case  (1914)  219  Mass.  513, 
107  N.  E.  350. 

l*Septimo's  Case  (1914)  219  Mass.  430, 
107  N.  E.  63,  7  N.  C.  C.  A.  906. 

15  The  mere  fact  that  an   injured  work- 
man was  employed  at  the  same  work  and 
the  same  wages  as  before  the  injury  will 
not  disentitle   him   to   compensation   under 
the  act  if  his  physical  efficiency  has  been 
substantially    impaired.      Burbage    v.    Lee 
(1915)  —  N.  J.  L.  — ,  93  Atl.  859. 

16  De  Zeng  Standard  Co.  v.  Pressey  (1914) 
86  N.  J.  L.  469,  92  Atl.  278.     The  court,  in 
holding    that    the   disability    intended    was 
a   disability  due  to  the   loss   of  a   member 
or  part  of  a  member  or  a  function,  rather 
than  the  mere  loss  of  earning  power,  said: 
"Even  if  this  were  not  so,  it  does  not  fol- 
low that  the  injured  employee  had  not  sus- 
tained a  distinct  loss  of  earning  power  in 
the   near  or   not   remote  future   for   which 
the  award  is   intended  to  compensate.     If 
it  were  a  question  of  damages  at  common 
law,  the  elements  of  damage  would  consist 
of   present   loss   of   wages,   probable   future 
loss    of    wages,    pain    and    suffering,    and 
temporary   or   permanent   disability,  which 
loss  the  jury  would  be  at  liberty  to  assess 
quite   independently   of   the   fact   that   the 
plaintiff  was  earning  the  same  wages,  ex- 
cept so  far  as  that  fact  might  be  evidential 
with  regard  to  the  extent  of  the  disability." 

17  Jensen,  v.  Southern  P.  Co.    (1915)    215 
N.  Y.  514,  post,  403,  109  N.  E.  600. 

18  Weber  v.   American   Silk  Spinning  Co. 
(1915)   —  R.  I.  — ,  95  Atl.   603. 


256 


WORKMEN'S  COMPENSATION. 


lost,  and  the  workman  can  do  his  work 
as  well  as  ever.19  So,  under  the  Wiscon- 
sin statute,  unless  the  earning  capacity 
of  the  claimant  in  the  employment  in 
which  he  was  at  the  time  he  was  injured 
has  been  impaired,  there  can  be  no  re- 
covery for  permanent  disability.20  But 
it  is  to  be  noticed  that  the  incapacity  of 
the  workman  is  determined  with  refer- 
ence to  his  ability  to  do  the  work  at 
which  he  was  engaged  at  the  time  of  the 
accident.21 

In  a  number  of  cases  it  has  been  held 
that     compensation     is    recoverable     al- 
though  the   injury   results   in   disfigure- 
ment only,  without  any  loss  of  earning  j 
power.22     And  under  the  Illinois  act  an 
employee  may  recover  compensation  for 
disfigurement    in    addition    to    the    com-  j 
pensation  he  recovers   because  of  inca- 
pacity to  work.23 


Under  the  Massachusetts  act,  compen- 
sation for  incapacity  to  work  is  recov- 
erable where  such  incapacity  is  the  re- 
sult of  the  injury,  although  the  man's 
physical  condition  was  such  that,  even  if 
uninjured,  his  capacity  to  work  would 
continue  but  for  a  relatively  short 
time.24 

Under  the  Minnesota  statute,  an  em- 
ployer is  liable  only  for  the  incapacity 
resulting  from  an  injury  while  in  his 
employment,  although  such  injury,  com- 
bining with  the  previous  physical  con- 
dition of  the  employee,  renders  him 
totally  disabled.25  But  a  workman  who 
had  previously  lost  a  hand  is,  upon  the 
loss  of  his  other  hand,  entitled  to  com- 
pensation as  for  total  disability,  and  not 
compensation  merely  for  the  loss  of  one 
hand  under  the  New  York  statute.26 

The  Massachusetts  Industrial  Accident 


19  There  can  be  no  compensation  for  the 
partial  permanent  injury  to  an  eye,  where 
the  claimant   concedes  that  he  can   do  his 
work  as  well  as  before  the  injury,  and  that 
he   is   receiving   the   same    wages   therefor, 
since   the   statute   makes   no   provision    for 
anything    less    than    the    loss    of    an    eye. 
Hirschkorn    v.    Fiege    Desk    Co.    (1915)    - 
Mich.  — ,  150  N.  W.  851. 

20  International   Harvester   Co.   v.   Indus- 
trial Commission,  157  Wis.  167,  147  N.  W. 
53,  5  N.  C.  C.  A.  822. 

21  One  who,  by  the  loss  of  a  thumb  and 
finger  on  one  hand,  is  disabled  from  follow- 
ing the  particular  calling  in  which  he  was 
engaged,    is    entitled    to    compensation    for 
total  disability,  regardless  of  what  he  may 
be  able  to  earn  in  other  occupations.     Mel- 
len   Lumber   Co.    v.   Industrial    Commission 
(1913)    154  Wis.  114,  post,  374,  142  N.  W. 
187,  Ann-  Cas.  1915B,  997. 

22  In   International   Harvester  Co.   v.  In- 
dustrial Commission  (Wis.)  supra,  the  court 
took  the  view  that  mere  disfigurement  must 
be   taken   into   consideration,   although   the 
workman  was  physically  capable  of  doing 
his   usual   work   in   a   satisfactory  manner. 

Under  the  Illinois  act,  an  employee  is 
entitled  to  receive  compensation  for  the 
disfigurement  caused  by  the  loss  of  the 
tips  of  two  fingers  of  his  right  hand,  as 
provided  for  in  clause  C  of  §  5  of  the  act 
of  1911,  although  the  employee  was  actual- 
ly incapacitated,  and  received  compensation 
during  the  period  of  total  incapacity. 
Stevenson  v.  Illinois  Watch  Case  Co.  (1914) 
186  111.  App.  418,  5  N.  C.  C.  A.  858.  The 
court  said:  "It  is  quite  conceivable  that  a 
workman  might  lose  his  entire  hand,  and 
after  he  recovered  from  the  immediate 
consequences  of  the  injury,  because  of  such 
loss,  engage  in  some  profession  or  calling 
where  his  earnings  would  be  much  larger 
than  in  the  employment  in  which  he  was 
injured.  Under  appellant's  construction  of 
the  law,  he  would  be  entitled  to  recover 
under  clause  B  for  the  time  lost  from  the 
immediate  effects  of  the  injury,  and  would 
L.R.A.1916A. 


be  driven  to  clause  D  for  any  recovery  for 
disfigurement,  and  could  not  recover  under 
that  clause  because  there  would  appear  no 
comparative  loss  in  his  earnings.  The  legis- 
lature should  not  be  held  to  intend  such  a 
result  unless  its  language  admits  no  other 
reasonable  construction,  and  we  are  of  the 
opinion  that  the  language  in  clause  C  can 
be  reasonably  construed  as  providing  for 
compensation  for  the  disfigurement  in  such 
cases."  In  this  case,  an  award  of  $454.08  was 
held  not  excessive  for  disfigurement  where 
the  employee  suffered  the  loss  of  about 
one  quarter  of  an  inch  of  the  bone  from  the 
ends  of  the  first  and  second  fingers  of  the 
right  hand,  leaving  only  a  small  portion  of 
the  nail  of  each  of  these  fingers  remaining. 

23  Section   5,   If   c,   of   the   Illinois   act   is 
intended   to  provide  compensation   for  dis- 
figurement,  and   it   would   be   unreasonable 
to  construe  it  as  providing  such  compensa- 
tion  in  cases  where  the  disfigurement  did 
not  cause  any  cessation  of  work,  and  deny- 
ing  it   in   other   cases    where  disfigurement 
did  cause  a  few  days'  incapacity.     Watters 
v.  P.  E.  Kroehler  Mfg.  Co.   (1914)    187  111. 
App.  548,  8  N.  C.  C.  A.  352. 

24  The    finding    by    the    Industrial    Acci- 
dent Board  that  the  employee  is  a  man  of 
failing  physical  power,   and   that   probably 
he  will  be  incapacitated  for  work  in  a  few 
years  as  the  result  of  such  physical  weak- 
ness, independently  of  his  injury,  does  not 
bar  him  from  compensation  under  the  act 
if  his  incapacity  to  work  is  a  result  of  his 
injury.      Duprey's    Case    (1914)    219    Mass. 
189,  106  N.  E.  686. 

25  An  employee  who  suffers  an  injury  re- 
sulting in  the  loss  of  an  eye  is  entitled  to 
compensation  as  for  partial  incapacity  only, 
although  he  had  previously  lost  the  other 
eye,  with  the  result  that  the  second  injury 
left    him    totally   incapacitated.      State    ex 
rel.  Garwin  v.  District  Ct.  (1915)  129  Minn. 
156,  151  N.  W.  910,  8  N.  C.  C.  A.  1052. 

26  Schwab     v.    Emporium     Forestry     Co. 
(1915)   167  App.  Div.  614,  153  N.  Y.  Supp. 
234. 


BY  INCAPACITATED  EMPLOYEE. 


257 


Board  may  award  payment  as  for  par- 
tial disability  after  payment  for  total 
disability  has  ceased.27  So,  under  the 
New  Jersey  act  an  allowance  may  be 
awarded  for  both  a  temporary  and  a  per- 
manent injury.28  Temporary  as  dis- 
tinguished from  permanent  disability  un- 
der the  New  Jersey  compensation  act  is 
a  condition  that  exists  until  the  injured 
workman  is  as  far  restored  as  the  per- 
manent character  of  the  injuries  will 
permit.29  So,  the  trial  court  errs  in 
classifying  the  "consolidation"  of  two 
injuries  of  the  left  lung  as  temporary 
after  it  had  healed  as  much  as  it  would 
ever  heal,  thus  extending  the  allowance 
for  temporary  disability  much  longer 
than  the  evidence  warranted.30 

Where  several  fingers  are  permanently 
injured  in  the  same  accident,  the  total 
award  is  properly  composed  of  separate 
awards  for  the  injury  to  each  finger  as 
fixed  by  the  statute,  not  to  exceed,  how- 
ever, the  amount  provided  for  the  loss 
of  a  hand.81  But  where  the  employee 
suffered  permanent  injuries  to  the  hand 
and  forearm  below  the  elbow,  and  also 
permanent  partial  disability  to  the  arm 


above  the  elbow,  the  court  should  deter- 
mine the  percentage  of  total  disability 
of  the  arm  as  a  whole,  and  not  attempt 
to  divide  the  injuries  into  two  units,  those 
of  the  hand  and  those  of  the  arm.32 

Where,  under  the  New  York  statute, 
a  claimant  has  been  allowed  compensa- 
tion to  the  full  amount  allowed  for  total 
disability,  he  cannot  be  awarded  further 
compensation  on  account  of  other  in- 
juries arising  out  of  the  same  accident, 
which  second  award  should  run  concur- 
rently with  the  first  award.33  So,  under 
the  Michigan  statute,  an  employee  is  not 
entitled  to  a  specific  indemnity  for  the 
loss  of  a  foot  in  addition  to  compensa- 
tion for  disability.84  And  under  part  II. 
§  11,  of  the  Massachusetts  act,  as  amend- 
ed by  statute  1913,  chapter  696,  addition- 
al compensation  cannot  be  awarded  for 
an  injury  to  a  phalange  not  resulting  in 
the  permanent  incapacity  for  use  of  the 
entire  finger.35  But  compensation  may 
be  granted  for  injury  to  one  hand,  and 
also  further  additional  compensation  for 
injury  to  the  fingers  of  the  other  hand.36 

The  provisions  of  the  statute  giving 
additional  compensation  for  the  loss  or 


27  An     employee    who    has    received    an 
award  based  on  total  disability  of  a  week- 
ly  compensation   to   be   paid   until   a   fixed 
date,  is  not  precluded  from  applying  to  the 
board   under   part   3,   §    12,   of   the   Massa- 
chusetts   act,    before    his    weekly    payment 
has  ceased.     Hunnewell's  Case    (1915)    220 
Mass.  351,  107  N.  E.  934. 

28  Maziarski    v.    George    A.    Ohl    &    Co. 
(1914)   86  N.  J.  L.  692,  93  Atl.  110. 

Where  an  employee  lost  several  fingers 
on  either  hand,  and  there  was  also  a  tempo- 
rary disability  partly  due  to  an  infection 
of  the  left  hand,  damages  may  be  allowed 
for  the  partial  but  permanent  injury  to  the 
fingers,  and  also,  in  addition,  for  the  tempo- 
rary disability  arising  from  the  infection. 


Nitram    Co.    v.    Court    of 
(1913)    84   N.  J.   .u   243, 


Common    Pleas 
Atl.  435.  The 


court   said   that    even    if   this   construction 
would   lead   to   the   result   that   a   recovery 


and  partial  disability  might  exceed  the 
maximum  recoverable  under  clause  D  relat- 
ing to  complete  disability,  the  court  could 
not  say  that  this  result  was  not  contem- 
plated by  the  legislature,  since  any  other 
construction  would  be  in  disregard  of  the 
plain  language  of  the  act. 

29  Vishney  v.  Empire  Steel  &  I.  Co.  (1915) 
-  N.  J.  L.  — ,  95  Atl.  143. 

30  Birmingham  v.  Lehigh  &  W.  Coal  Co. 
(1915)  —  N.  J.  L.  — ,  95  Atl.  242. 

81  George  W.  Helme  Co.  v.  Middlesex  Com- 
mon Pleas  (1913)  84  N.  J.  L.  531,  87  Atl. 
72,  4  N.  C.  C.  A.  674. 

32  State   ex   rel.  Kennedy  v.  District  Ct. 
(1915)  129  Minn.  91,  151  N.  W.  530,  8  N. 

C.  C.  A.  478. 

33  Fredenburg   v.    Empire   United   R.   Co. 
L.R.A.1916A.  17 


(1915)  168  App.  Div.  618,  154  N.  Y.  Supp. 
351.  The  court,  however,  added:  "We  are 
not  to  be  understood  as  holding  that  if, 
at  the  expiration  of  the  205  weeks,  dis- 
ability of  claimant  shall  exist  by  reason 
of  the  injuries  resulting  from  this  accident 
other  than  the  disability  arising  from  the 
loss  of  the  foot,  and  claimant  will  not  be 
entitled  to  a  further  award  on  account 
thereof,  but  as  simply  holding  that  the 
claimant  by  the  first  award  having  been 
allowed  compensation  to  the  full  amount  al- 
lowed for  total  disability  could  not  by  the 
second  award  be  awarded  further  compen- 
sation for  total  disability  on  account  of 
other  injuries  arising  out  of  the  same  acci- 
dent, which  second  award  should  run  con- 
currently with  the  first  award." 

34  The  period  of  disability  deemed  to 
exist  under  the  Michigan  statute  in  case 
of  a  loss  of  a  foot  is  not  extended  because, 
as  a  further  result  of  the  accident,  the  em- 
ployee was  in  fact  totally  disabled  for  a 
longer  or  shorter  period.  Limron  v.  Blair 
(1914)  181  Mich.  76,  147  N.  W.  546,  5  N.  C. 
C.  A.  866.  The  court  said:  "The  statute 
speaks  in  terms  of  disability,  all  of  its  pro- 
visions being  considered,  it  does  not  mean 
that  compensation  must  be  paid  during  a 
period  of  actual  disability,  and  also,  if  a 
member  is  lost,  during  a  period  equal  to  the 
one  during  which  total  disability  is  deemed 
to  continue.  It  does  not  provide  a  specific 
indemnity  for  the  loss  of  a  member  in  addi- 
tion to  compensation  for  disability." 

SSEthier's  Case  (1914)  217  Mass.  511, 
105  N.  E.  376,  5  N.  C.  C.  A.  611. 

36  Meley's  Case  (1914)  219  Mass.  136,  106 
N.  E.  559. 


258 


WORKMEN'S  COMPENSATION. 


incapacity  of  certain  members  of  the 
body  ceases  to  be  applicable  upon  the 
death  of  the  employee.87 

The  "loss"  of  a  member  within  the 
meaning  of  the  Wisconsin  act  has  ref- 
erence to  the  physical  loss  of  the  mem- 
ber, and  not  to  its  impairment  by  the 
injury.38  But  "incapacity  of  use"  with- 
in the  meaning  of  the  Massachusetts  act 
need  not  be  tantamount  to  an  actual 
severance  of  the  member;  it  is  enough 
that  the  normal  use  of  it  has  been  taken 
entirely  away.39  So,  too,  compensation 
is  properly  allowed  for  permanent  in- 
capacity to  both  legs,  although  as  a  mat- 
ter of  fact,  the  legs  themselves  had  not 
been  injured,  but  the  accident  was  to  the 
spine,  which  resulted  in  the  paralysis  of 
the  legs.40  And  the  complete  loss  of 
the  index,  second,  and  third  fingers,  and 
an  injury  to  the  fourth  finger  which 
makes  it  stiff  and  practically  useless, 
amount  to  such  a  "permanent  loss  of  the 
use  of  the  hand"  which  is  to  be  consid- 
ered as  the  equivalent  of  the  loss  of  the 
hand  within  §  15  of  the  New  York  act.41 
And  an  award  as  for  the  loss  of  an  en- 
tire phalange  of  a  finger  was  sustained 
although  the  Commission  found  that  the 
claimant's  injury  resulted  in  "the  am- 
putation of  the  third  finger  on  the  right 
hand  near  the  first  joint,"  and  in  another 


place  stated  that  "in  the  amputation  of 
the  third  finger  about  one  third  of  the 
bone  of  the  distal  phalange  was  cut 
off."  42 

But  the  New  York  statutes  will  not 
be  construed  so  that  a  person  who  has 
lost  the  entire  use  of  a  finger,  only  a 
portion  of  which  is  amputated,  would  be 
entitled  to  a  larger  compensation  than 
one  who  has  suffered  the  absolute  am- 
putation of  the  entire  finger.43  And  the 
amputation  of  the  index  finger  between 
the  second  joint  and  the  third  joint, 
and  the  severance  of  a  small  piece  of 
bone  and  pieces  of  tendons  and  flesh  of 
thumb,  do  not  amount  to  the  "loss  by 
severance  at  or  above  the  second  joint 
of  two  or  more  fingers,  including 
thumb."  M  Under  the  New  Jersey  stat- 
ute it  is  error  to  award  greater  compen- 
sation for  an  injury  to  an  ankle  than  is 
allowed  by  the  statute  for  the  loss  of 
a  foot.46 

Under  the  California  statute,  com- 
pensation may  be  awarded  for  permanent 
disability  amounting  to  less  than  10  per 
cent  of  total  disability,  although  the  stat- 
ute only  specifically  provides  for  dis- 
ability amounting  to  10  per  eent,  20 
per  cent,  and  so  on  in  gradations  up  to 
100  per  cent,  and  for  disabilities  "in 
termediate  to  those  fixed"  as  above.4ff 


37Burns's  Case  (1914)  218  Mass.  8,  105 
N.  E.  601,  5  N.  C.  C.  A.  635.  The  court 
said:  "The  question  whether,  if  during 
his  lifetime,  and  upon  his  own  petition,  this 
specific  compensation  had  been  ordered  for 
a  stated  number  of  weeks,  and  his  death 
had  occurred  before  the  expiration  of  that 
period,  the  right  thus  adjudicated  would 
cease  at  his  death,  or  whether  the  payments 
must  be  continued  until  the  end  of  the 
appointed  time  for  the  benefit  of  his  de- 
pendents, is  not  raised  here,  and  of  course 
has  not  been  passed  upon." 

38  Northwestern  Fuel  Co.  v.  Leipus  (1915) 
-  Wis.  — ,  152  N.  W.  856. 

39  Where   a   hand   cannot   be  used   in   its 
ordinary  manner,  but  can  be  used  only  as  a 
hook,   it   is   "incapable   of   use"  within   the 
meaning  of  the  act,  and  the  incapacity  of 
use  need  not  be  tantamount  to  the  actual 
severance  of  the  hand.    Meley's  Case  (1914) 
219  Mass.  136,  106  N.  E.  559. 

The  words  "incapable  of  use"  in  the 
Massachusetts  act,  Stat.  1911,  chap.  751, 
pt.  2,  §  11,  as  amended  by  Stat.  1914,  chap. 
708,  providing  that  the  additional  amount 
to  be  paid  in  case  of  a  loss  of  a  hand  shall 
also  be  paid  where  the  hand  is  not  lost, 
but  so  injured  as  to  be  permanently  in- 
capable of  use,  apply  to  a  case  where  the 
hand  of  the  workman  was  injured  to  the 
extent  that  he  had  the  ability  only  to  use 
the  hand  to  the  extent  of  a  small  amount  of 
motion  in  the  thumb  and  first  finger  with 
the  middle,  ring,  and  little  fingers  para- 
L.R.A.1916A. 


lyzed,  and  with  an  interference  of  the  circu- 
lation to  such  a  degree  that  the  hand  goes 
to  sleep.  Floccher  v.  Fidelitv  &  D.  Co. 
(1915)  —  Mass.  — ,  108  N.  E.  1032. 

40Burns's  Case   (1914)    218  Mass.  8,  105- 
N.  E.  601,  5  N.  C.  C.  A.  635. 

41  Rockwell  v.  Lewis  (1915)  168  App.  Div. 
674,  154  N.  Y.  Supp.  893. 

42  Re  Petrie  (1915)  215  N.  Y.  335,  109  N. 
E.  549. 

43Feinmen  v.  Albert  Mfg.  Co.  (1915)  — 
App.  Div.  — ,  155  N.  Y.  Supp.  909,  followed' 
by  Possner  v.  Smith  Metal  Bed  Co.  (1915) 
-  App.  Div.  — ,  155  N.  Y.  Supp.  912; 
O'Neil  v.  West  Side  Storage  Warehouse  Co- 
(1915)  --  App.  Div.  — ,  155  N.  Y.  Supp. 
912. 

44  Weber  v.  American  Silk   Spinning  Co. 
(1915)  —  R.  I.  — ,  95  Atl.  603. 

45  Whether    greater    compensation    could", 
be  allowed  for  an  injury  to  the  ankle  than 
the    stipulated    compensation    for    the    loss 
of  a  foot  is  not  a  question  of  fact,  but  a 
question  of  law,  involving  the  construction 
of   the    statute,   which    the   supreme   court 
could  decide;   whether  the  compensation  to 
be    allowed    for    such    an    injury    shall    be 
equal  to  that  provided  for  the  loss  of  a  foot 
is  a   matter   for   the   determination   of   the 
trial  judge.     Rakiec  v.  Delaware,  L.  &  W. 
R.  Co.    (1913)   —  N.  J.  L.  — ,  88  Atl.  953. 

46  The    Commission    may    allow   compen- 
sation   for    a    permanent    disability    which 
amounts  to  but  2f  per  cent  of  total  disa- 
bility.    Massachusetts  Bonding  &  Ins.   Co. 


BY  INCAPACITATED  EMPLOYEE. 


251> 


Whether  the  loss  of  several  fingers  is 
permanent  total  disability  or  permanent 
partial  disability  is  a  question  of  law, 
and  the  employer  is  not  entitled  to  a 
jury  trial  of  the  question.*7 

A  decision  of  the  Industrial  Accident 
Board  to  end  all  payments  under  the  act 
ends  the  matter,  and  the  Board  is  with- 
out power  to  revive  it.48 

An  injured  employee  is  required  to 
take  all  reasonable  means  to  recover  his 
earning  capacity.49  Whether  or  not  a 
workman  will  be  held  barred  from  com- 
pensation for  refusing  to  submit  to  an 
operation  depends  upon  all  of  the  facts 


of  the  case,  including  his  mental  con- 
dition, the  severity  and  dangers  of  the 
operation  in  question,  and  the  extent  of 
the  recovery  to  be  anticipated  as  a  re- 
sult of  the  operation.50  The  refusal  of 
an  employee  to  submit  to  an  operation 
cannot  be  said  to  be  unreasonable,  where 
it  appears  that  a  risk  of  life  is  involved^ 
although  such  risk  is  very  slight.51  And 
it  is  error  for  the  trial  court  to  make  an 
award  as  for  temporary  disability  upon 
the  theory  that  the  injury  may  be  cured 
by  an  operation,  and  that  it  is  the  duty 
of  the  employee  to  undergo  it.52 

The  question  of  the  employee's  inca- 


v.   Pillsbury    (1915)    --   Cal.   — ,    151    Pac. 
419. 

47  And  an  award  of  $1,200  for  the  loss  of 
several  fingers  oi-  a  hand  cannot  be  said  to 
be  arbitrary  on  the  complaint  of  the  em- 
ployee, where  the  maximum  amount  for 
any  permanent  partial  disability  is  $1'500. 
Sinnes  v.  Daggett  (1914)  80  Wash.  673,  142 
Pac.  5. 

*8  As  the  Massachusetts  act,  relative  to 
the  powers  of  the  Industrial  Accident  Board 
to  review  its  decision  unqualifiedly  termi- 
nating all  payments,  is  in  substantially  the 
same  words  as  the  English  act,  the  English 
decisions  made  before  the  passage  of  our 
act  are  strongly  persuasive  of  the  meaning 
intended  by  the  general  court  in  passing  the 
act.  Hunnewell's  Case  (1915)  220  Mass. 
351,  107  N.  E.  934. 

*9  No  compensation  is  recoverable  for  the 
additional  incapacity  caused  by  the  aggra- 
vation of  a  wound  received  in  the  course  of 
the  employment,  caused  by  the  workman's 
engaging  in  a  boxing  match  before  the 
wound  had  completely  healed.  Kill  v.  In- 
dustrial Commission  '(1915)  160  Wis.  549, 
ante,  14,  152  N.  W.  148. 

The  question  whether  an  injured  em- 
ployee neglected  to  take  the  proper  means 
for  recovery  from  the  injuries  is  a  question 
of  fact  for  the  justice  of  the  superior  court, 
and  his  conclusions  will  not  be  reviewed 
where  the  employee  presented  testimony  as 
to  his  conduct  with  reference  to  the  in- 
juries, the  diligence  which  he  had  used  in 
obtaining  the  treatment  of  the  injury  by  a 
physician,  the  nature  of  such  treatment, 
and  the  care  that  he  had  taken  in  the  mat- 
ter to  follow  the  instructions  of  his  phy- 
sician. Corral  v.  William  H.  Hamlyn  &  Son 
(1915)  —  R.  I.  — ,  94  Atl.  877. 

50  The  refusal  of  an  injured  workman,  a 
foreigner,  unable  to  speak  or  understand 
the  English  language,  and  suffering  great 
pain,  to  submit  to  a  serious  operation  until 
fifteen  or  sixteen  hours  after  it  is  first 
found  necessary,  is  not,  as  a  matter  of  law, 
so  unreasonable  and  persistent  as  to  amount 
to  the  refusal  of  medical  attendance,  and 
defeat  his  widow's  right  to  compensation. 
Jendrus  v.  Detroit  Steel  Product  Co.  (1913) 
178  Mich.  265,  post,  381,  144  N.  W.  563, 
Ann.  Cas.  1915D,  476,  4  N.  C.  C.  A.  864. 

If  a  workman  is  not  to  be  subjected  to 
L.R.A.1916A. 


unusual  risk  and  danger  arising  from  the 
anesthetic  to  be  employed,  or  from  the  na- 
ture of  the  proposed  operation,  it  is  his 
duty  to  submit  if  it  fairly  and  reasonably 
appears  that  the  result  of  such  operation 
will  be  a  real  and  substantial  physical 
gain.  But  it  would  be  unreasonable  to 
require  an  injured  workman  to  submit  to 
an  operation  upon  his  hand  where,  accord- 
ing to  the  expert  testimony,  it  would  be 
"pretty  close  to  being  permanently  inca- 
pacitated for  use  even  after  this  operation," 
and  there  was  doubt  as  to  the  time  within 
which  some  uncertain  and  indeterminate 
degree  of  benefit  reasonably  might  be  ex- 
pected. Floccher  v.  Fidelity  &  D.  Co.  (1915) 
-  Mass.  — .  108  N.  E.  1032. 

51  In   McNally    v.    Hudson    &    M.   R.    Co. 
(1915)  —  N.  J.  L.  — ,  95  Atl.  122,  in  speak- 
ing of  the  duty  of  an  employee  to  submit: 
to    an    operation,    the    court    said:       "Al- 
though the  peril  to  life  seems  to  be  very 
slight, — forty-eight      chances      in      twenty- 
three    thousand, — nevertheless    the    idea    is> 
appalling  to  one's  conscience  that  a  human 
being  should  be  compelled  to  take  a  risk 
of  death,  however  slight  that   may  be,  in 
order    that    the    pecuniary    obligation    cre- 
ated by  the  law  in  his  favor   against   his 
employer  may  be  minimized." 

52  The    trial    court    errs    in    basing    an- 
award   of   compensation    for   injury   in   the 
eye  upon   the  theory  of  a   temporary  dis- 
ability where  he  himself  finds  that  the  dis- 
ability  will  be   permanent   unless   there   is; 
an     operation.       Feldman     v.     Braunstein 
(1915)    --  N.  J.  L.  — ,  93   Atl.   679.     The 
court    said:      "It    is    clear    that    the    legis- 
lature never  meant  to   put   the   control   in 
the  hands  of  one  party  alone.    It  is  for  the 
court,  under  the  statute,  to  determine  the 
compensation,   and   the   court  can   act  only 
on  the  facts  before  it,  not  upon  the  uncer- 
tain possibilities  of  the  future." 

The  trial  judge,  having  found  that  an  in- 
jury would  be  permanent  unless  the  em- 
ployee submitted  to  an  operation,  should 
not  make  an  award  as  for  a  temporary 
disability,  on  the  theory  that  the  injury 
can  be  cured  by  an  operation,  and  that  it 
is  the  duty  of  the  employee  to  submit  to 
it.  McNally  v.  Hudson  &  M.  R.  Co.  (N.  J.)' 
supra. 


260 


WORKMEN  8  COMPENSATION. 


pacity  to  work  is  a  question  of  fact,  and 
the  courts,  on  appeal,  will  not  inter- 
fere with  the  finding  of  the  trial  court 
or  of  a  Commision  if  there  is  any  evi- 
dence to  support  the  finding.63  An  em- 
ploye is  not  precluded  from  claiming 
total  incapacity  by  reason  of  the  find- 
ing of  a  committee  of  arbitration  that 
he  agreed  to  a  settlement  on  the  basis 
of  partial  disability,  which  would  cease 
at  the  end  of  104  weeks,  where  that 
agreement  was  made  after  the  committee 
had  found  that  total  disability  would 
cease  on  a  certain  day,  to  which  finding, 
however,  the  employee  did  not  consent, 
and  did  not  waive  his  right  to  appeal 
therefrom.64 

It  has  been  said  that  the  compensation 
fixed  by  the  statute  is  not  to  be  taken  as 
a  measure  of  the  damages  recoverable  in 
an  action  at  law,56  and  also  that  the  prin- 
ciples of  the  common  law  can  be  of 
little  assistance  in  measuring  the  right 
of  the  workman  to  claim  compensation 
tinder  the  industrial  insurance  law.56 


53  Except  in  a  very  clear  case,  the  court 
will  not  interfere  with  the  findings  of  the 
Industrial  Commission  that  a  workman  has 
been  restored  to  health  and  been  fully  com- 
pensated for  his  injury.  Oldenberg  v.  In- 
dustrial Commission  (1915)  159  Wis.  333, 
150  N.  W.  444. 

The  court  cannot  say  that  a  finding  of 
total  disability  was  not  warranted  where 
the  evidence  was  not  before  the  court,  and 
a  photograph  which  was  annexed  to  and 
made  a  part  of  the  report  of  the  Board 
showed  that  the  workman  had  lost  the 
whole  of  every  finger  except  the  forefinger 
of  his  right  hand,  and  the  little  or  fourth 
finger  of  his  left  hand.  Septimo's  Case 
(1914)  219  Mass.  430,  107  N.  E.  63,  7  N. 
C.  C.  A.  906. 

A  finding  of  total  disability  at  the  time 
of  the  hearing  is  not  sustained  by  the  evi- 
dence where  the  claimant  testified  that  he 
had  been  working  for  several  days,  that  he 
intended  to  return  to  work  upon  the  day 
after  the  hearing,  that  heavy  lifting  caused 
him  pain,  but  did  not  say  that  his  work  in- 
volved such  lifting,  and  it  appeared  as  a 
matter  of  fact  that  he  was  earning  more 
than  at  the  time  of  the  accident.  State 
ex  rel.  Duluth  Diamond  Drilling  Co.  v.  Dis- 
trict Ct.  (1915)  129  Minn.  423,  152  N.  W. 
838. 

5*Duprey's  Case  (1914)  219  Mass.  189, 
106  N.  E.  686. 

55  In  Russo  v.  Omaha  &  C.  B.  Street  R. 
Co.  (1915)  —  Neb.  — ,  153  N.  W.  510,  it  was 
held  that  the  amount  provided  for  in  the 
act  as  compensation  for  damages  are  arbi- 
trary   sums    fixed    by   the   legislature,    and 
are  not  to  be  taken  as  a  standard  of  com- 
parison   or   recovery    in   an    action    for    in- 
juries suffered  before  its  enactment. 

56  Hillestad  v.  Industrial  Ins.  Commission 
X.R.A.1916A. 


The  amount  of  the  compensation  is 
usually  determined  by  the  amount  of  the 
average  weekly  earnings  of  the  injured 
employee.  Under  the  Massachusetts  act, 
consideration  of  the  average  weekly 
wages  of  an  injured  employee  is  not  re- 
stricted to  the  wages  earned  from  the 
same  employer.67  But  the  term  "average 
annual  earnings,"  as  used  in  the  Michigan 
act,  means  his  average  annual  earnings 
in  the  employment  in  which  he  was  em- 
ployed at  the  time  of  his  injury,  al- 
though he  was  engaged  in  such  employ- 
ment but  a  portion  of  each  year,  and 
was  engaged  in  another  employment  dur- 
|  ing  the  remaining  part  of  the  year.58 

The  provision  in  the  New  Jersey  stat- 
ute   that    where    the    rate    of    wages    is 
fixed  by  the  output  of  the  employee,  his 
!  average  weekly  wages  shall  be  taken  to 
j  be  six  times  his  average  daily  earnings 
for  a  working  day  of  ordinary  length, 
excluding   overtime,    does   not   apply   in 
a  case  where  the  employee  is  paid  by  the 
hour.59    Under  the  Michigan  statute,  the 
average  weekly  wages  of  the  employee 

(1914)  80  Wash.  426,  141  Pac.  913,  6  N.  C. 
C.  A.  763. 

57  The  average  weekly  earnings  of  a  long- 
shoreman who  was  injured  in  the  employ- 
ment of  one  steamship  company  are  to  be 
computed    from    his    wages    received    from 
all   employers,  and  not  merely  from   what 
he  received  from  the  steamship  company  in 
whose   employ   he  was   at   the   time  of  his 
injury,  where  he,  like  other  longshoremen, 
worked  for  many  other  employers  during  a 
day  or  group  of  days.    Gillen  v.  Ocean  Acci. 
&    Guarantee    Corp.    (1913)    215    Mass.   98, 
post,  371,  102  N.  E.  346. 

58  Andrejwski     v.     Wolverine     Coal     Co. 

(1914)  182   Mich.   298,    148   N.   W.   684,   6 
N.    C.    C.   A.    807.      The   court    said:      "To 
charge    this    employment    with    compensa- 
tion  for   injuries   to   its   employees,   on  the 
same  basis  as  employments  which  operate 
during  substantially  300  days  in  the  year, 
would    be    an    apparent    injustice,   as    such 
compensation  would  be  based  on  the  theory 
of  impossible  earnings  by  the  employee  in 
that  employment  which  operated  upon  the 
average  a  trifle  over  two  thirds  of  a  work- 
ing year." 

59  Smolenski    v.   Eastern   Coal   Dock   Co. 

(1915)  —  N.  J.  L.  — ,  93  Atl.  85.    The  court 
further  said  that  from   the  language  used 
it  might  be  inferred,  however,  that  where 

I  weekly  wages  are  not  fixed,  they  shall  be 
taken  to  be  six  times  the  daily  wage  for  a 
working  day  of  average  length.  In  this 
case  it  was  held  that  the  wages  of  a  work- 
man may  be  fixed  at  $15  a  week  where  he 
was  paid  by  the  hour,  and  his  wages  varied 
from  20  cents  to  32  cents  an  hour,  and  at 
the  time  he  was  injured  he  was  earning  25 
cents  an  hour,  and  the  average  working 
day  was  ten  hours  a  day. 


BY  INCAPACITATED  EMPLOYEE. 


261 


must  always  be  determined  by  dividing 
his  average  annual  earnings  by  52.60 

The  compensation  to  be  allowed  to  an 
injured  employee  is  to  be  based  upon 
the  wages  which  he  was  receiving  at  the 
time  of  the  accident,  although  those 
wages  were  somewhat  higher  than  he 
had  previously  been  receiving.81 

A  fixed  sum  given  by  the  employer  to 
the  workman  to  pay  the  wages  of  an  as- 
sistant necessary  for  him  in  performance 
of  his  work  is  not  a  part  of  the  work- 
man's wages.62  But  in  fixing  the  amount 
of  wages  which  an  employee  was  re- 
ceiving at  the  time  of  his  injury,  con- 
sideration must  be  given  to  the  value 
of  board  furnished  to  the  employee  by 
the  employer.63 

Under  the  Kansas  statute,  in  deter- 
mining the  amount  of  weekly  payments 
of  compensation,  consideration  must  be 
given  to  the  amount  which  the  workman 
was  able  to  earn  after  the  injury.64  But, 
in  determining  the  question  of  probable 
future  earnings,  an  offer  of  employment 

60  Andrejwski  v.  Wolverine  Coal  Co. 
(Mich.)  supra. 

OlHuyett  v.  Pennsylvania  R.  Co.  (1911) 
86  N.  J.  L.  683,  92  Atl.  58. 

The  average  weekly  earnings  of  a  motor- 
man  may  be  fixed  at  the  amount  he  was 
earning  at  the  time  he  was  injured,  where, 
although  he  had  been  earning  such  amount 
for  but  one  month  and  two  days,  and  he 
could  not  be  assured  of  retaining  the  par- 
ticular run  more  than  a  period  of  six 
months,  there  was  a  reasonable  certainty  of 
his  retaining  it,  and  the  wages  that  he  was 
receiving  at  the  time  of  the  injury  were 
about  the  customary  wages  which  the  em- 
ployer was  paying  to  motormen  who  had 
been  in  the  service  of  the  company  as  long 
as  the  injured  workman.  Fredenburg  v. 
Empire  United  R.  Co.  (1915)  168  App.  Div. 
618,  154  N.  Y.  Supp.  351. 

62  Where   an    employer    pays    to   an    em- 
ployee having  general  charge  of  the  affairs 
of  the  employer's  business  a  fixed  sum  of 
money  each  month,  from  which  the  employ- 
ee is  required  to  pay  an  assistant,  if  one  is 
employed   by   him    to   assist    in   the    work, 
such  a  sum  as  may  be  agreed  upon  between 
the  employee  and  the  assistant,  the  sum  so 
paid   the   assistant   forms   no   part   of   the 
salary  or  compensation  of  the  employee,  and 
in  determining  the  salary  of  such  employee 
the  amount  paid  the  assistant  must  be  de- 
ducted from  the  total  amount  paid  by  the 
employer.     State  ex  rel.  Gaylord  Farmers' 
Co.-op.     Creamery     Asso.     v.     District     Ct. 
(1915)  128  Minn.  486,  151  N.  W.  182. 

63  The  amount  of  wages   which  a   work- 
man   was    receiving    at    the    time    of    his 
injury  should  be  fixed  at  $15  where  he  re- 
ceived $12  in  cash  and  board  from  the  em- 
ployer,   which    was    fixed    at   $3   per    week. 
Baur  v.  Court  of  Common  Pleas   (1915)  — 
N.  J.  L.  — ,  95  Atl.  627. 
L.R.A.1916A. 


by  the  employer  pending  litigation,  which 
offer  was  not  permanent  or  for  any  defi- 
nite period,  is  of  but  little  weight.65 

It  has  been  held  that  by  the  express 
terms  of  the  Wisconsin  act  a  workman 
disabled  from  following  the  occupation 
in  which  he  was  engaged  when  injured  is 
entitled  to  compensation  as  for  total  in- 
capacity, notwithstanding  he  may  be  able 
to  earn  wages  in  another  employment.651 

The  statutes  usually  provide  that  an 
injured  workman  shall  be  furnished 
with  proper  medical  attendance  at  the 
expense  of  the  employer,  but  the  latter 
is  entitled  to  select  the  physician  to 
attend  him.  Under  the  Wisconsin  stat- 
ute, an  injured  employee  cannot  employ 
a  physician  at  the  expense  of  the  em- 
ployer, except  for  such  reasonable  length 
of  time  as  necessarily  intervenes  between 
his  injury  and  a  reasonable  opportunity, 
after  due  notice,  for  the  employer  to 
furnish  one.66  But  circumstances  may 
exist  that  will  entitle  a  workman  to  go 
to  his  own  physician.  Thus,  an  injured 


64  Compensation  to  be  awarded  to  a  plain- 
tiff, who,  before  the  accident,  was  earning 
$12  a  week,  and  after  the  accident,  was  able 
to  earn  $3  a  week,  is  50  per  cent  of  the 
difference  in  the  earnings  before  and  after 
the  accident, — namely,  $4.50  per  week. 
Roberts  v.  Charles  Wolff  Packing  Co. 
(1915)  95  Kan.  723,  149  Pac.  413. 

65Giachas  v.  Cable  Co.  (1915)  190  111. 
App.  285. 

65a  One  who  by  the  loss  of  a  thumb  and 
finger  on  one  hand  is  disabled  from  follow- 
ing the  particular  calling  in  which  he  was 
engaged  is  entitled  to  compensation  for  total 
disability  regardless  of  what  he  may  be 
able  to  earn  in  other  occupations  under  a 
statute  providing  that  the  weekly  loss  of 
wages  on  which  the  compensation  of  an  in- 
jured employee  shall  be  computed  shall 
consist  of  such  percentage  of  the  average 
weekly  earnings  of  the  injured  employee  as 
shall  fairly  represent  the  proportionate  ex- 
tent of  the  impairment  of  his  earning  ca- 
pacity "in  the  employment  in  which  he  was 
j  working  at  the  time  of  the  accident." 
Mellen  Lumber  Company  v.  Industrial  Com- 
mission of  Wis.  et  al.,  —  Wis.  — ,  142  N. 
W.  187. 

66  Competency  of  an  injured  employee  to 
procure  medical  and  surgical  treatment,  or 
for  such  to  be  procured  in  his  behalf  at  the 
expense  of  the  employer,  under  the  work- 
men's compensation  act,  exists  for  the  rea- 
sonable time  after  the  injury  required  to 
afford  the  employer  an  opportunity  to  exer- 
cise his  privilege;  it  is  then  suspended  if 
the  employer  exercises  such  privilege,  but 
revives  and  relates  back  to  the  time  of 
suspension,  if  necessary,  if  the  employer  un- 
reasonably neglects  or  refuses  to  exercise 
such  privilege.  Milwaukee  v.  Miller  (1913) 
154  Wis.  652,  ante,  1,  144  N.  W.  188,  Ann. 
Gas.  1915B,  847,  4  N.  C.  C.  A.  149. 


262 


WORKMEN'S  COMPENSATION. 


employee  is  justified  in  going  to  his  fam- 
ily physician  for  treatment  where  he  is 
dissatisfied  with  the  advice  given  him  by 
the  surgeon  first  selected  by  the  insurance 
company,  and,  after  being  directed  to  go 
to  another  surgeon,  finds  the  surgeon 
thus  suggested  to  be  out  of  town.67  And 
although  a  workman  is  not  permitted 
generally  to  select  his  own  physician  or 
hospital,  but  is  required  to  accept  that 
which  is  provided  for  him  by  the  employ- 
er, yet  in  the  case  of  an  illiterate  for- 
eigner, unable  to  read,  write,  or  under- 
stand the  English  language,  who  was  not 
informed  as  to  what  he  should  do  in  case 
of  injury,  the  employer  will  be  required 
to  pay  the  physician  to  whom  he  went 
for  necessary  services  rendered  to  him.68 

The  burden  of  proof  to  establish  to  a 
reasonable  certainty  the  reasonableness 
of  charges  for  medical  and  surgical  treat- 
ment procured  by  the  employee  himself 
is  on  the  employee.69 

The  Kansas  act  contemplates  no  al- 
lowance on  account  of  medical  attendance 
except  where  a  workman  dies  as  a  re- 
sult of  his  injuries,  leaving  no  depend- 
ents.70 A  similar  rule  prevailed  in  New 
Jersey  prior  to  the  amendment  of  1914.71 

Expenses  for  services  of  a  nurse,  as 
such,  are  not  allowable  against  the  em- 
ployer for  the  period  of  ninety  days 


after  the  injury,  or  at  all  during  such 
period,  except  as  a  part  of  reasonably 
necessary  medical  and  surgical  treat- 
ment, proved  to  be  such  by  the  physician 
and  surgeon  in  attendance;  and  ex- 
penses for  services  of  a  nurse  as  such, 
after  the  first  ninety  days,  are  not, 
chargeable  to  the  employer,  nor  at  all 
thereafter,  except  by  allowance  of  a 
maximum  percentage  or  disability  in- 
demnity.72 

The  supreme  court  cannot,  under  §  20 
of  the  Washington  act,  allow  a  fee  to 
an  attorney  or  increase  the  allowance  of 
the  superior  court.73  The  Minnesota 
statute  contains  no  provision  for  an  al- 
lowance for  attorney's  fees,  but  the 
court  may  allow  the  statutory  costs  and 
actual  disbursements,  although  they  are 
designated  in  the  order  as  attorney's 
fees.74 

Means  whereby  payments  of  future 
compensation  may  be  commuted  by  the 
payment  of  a  lump  or  gross  sum  is  usual- 
ly provided  in  the  statutes.  The  ques- 
tion whether  or  not  the  weekly  payments 
shall  be  so  commuted  rests  in  the  dis- 
cretion of  the  trial  court  or  of  the  Com- 
mission.75 The  Kansas  statute  gives 
precisely  the  same  power  to  the  trial 
court  in  respect  to  awarding  a  lump  sum 
or  periodical  payments,  in  cases  insti- 


67  Massachusetts  Bonding  &  Ins.  Co.  v. 
Pillsbury  (1915)  —  Cal.  — ,  151  Pac.  419. 

espanasuk's  Case  (1914)  217  Mass.  589, 
105  N.  E.  368,  5  N.  C.  C.  A.  688. 

69  In  Milwaukee   v.  Miller    (Wis.)    supra, 
the  court  held  that  it  would  not  allow  a  bill 
of   a  physician   for   over   one   hundred   and 
thirty  visits  for  an  injury  to  a  great  toe, 
even  of  such  a  severe  nature  as  to  require 
amputation  and  careful  attention  for  some 
days  to  eradicate  or  prevent  infection,  and 
to  create  proper  conditions  for  recovery. 

70  Cain   v.   National   Zinc   Co.    (1915)    — 
Kan.  — ,  148  Pac.  251. 

71  Central    R.    Co.    v.    Kellett    (1914)    86 
W.  J.  L.  84,  90  Atl.  1005,  5  N.  C.  C.  A.  529; 
Taylor  v.  Seabrook   (1915)  —  N.  J.  L.  — , 
94  Atl.   399;   Hammill   v.   Pennsylvania   R. 
Co.  (1915)  —  N.  J.  L.  — ,  94  Atl.  313. 

72  Milwaukee   v.   Miller    (1913)    154   Wis. 
652,    ante,    1,    144    N.    W.    188,    Ann.    Cas. 
1915B,  847,  4  N.  C.  C.  A.  149. 

73Boyd  v.  Pratt  (1915)  72  Wash.  306, 
130  Pac.  371. 

74  State  ex  rel.  Duluth  Diamond  Drilling 
Co.  v.  District  Ct.  (1915)  129  Minn.  423,  152 
N.  W.  838. 

75  On  the  loss  of  a  first  phalange  of  the 
index  finger  the  case  should  be  treated  as 
one   in   which   payments  were   to   be   made 
in  the  future,  to  be  commuted  in  the  sound 
discretion   of  the  court  if  it  thought  that 
was   in  the   interest  of  justice.     James  A. 
Banister  Co.   v.  Kriger   (1913)    —  N.  J.  L. 
— ,  89   Atl.   923.     This   decision   was   on   a 
T.  R.A.1916A. 


rehearing  of  a  former  case,  84  N.  J.  L. 
30,  85  Atl.  1027. 

A  judgment  for  an  award  for  permanent 
disability  may  be  for  a  lump  sum  or  for 
periodical  payments,  in  the  discretion  of 
the  trial  court.  Cain  v.  National  Zinc  Co. 
(1915)  94  Kan.  679,  146  Pac.  1165. 

In  Gorrell  v.  Battelle  (1914)  93  Kan. 
370,  144  Pac.  244,  the  court  in  a  headnote 
summed  up  the  facts  and  findings  of  the 
case  as  follows:  "In  this  case  the  injured 
workman,  who  was  a  mechanic,  lost  his 
right  eye,  and  his  left  eye  became  weakened 
as  the  result  of  an  injury.  The  con- 
sequence was,  his  capacity  to  use  tools  was 
diminished,  and  he  was  reduced  to  an  eco- 
nomic status  lower  than  he  had  previously 
occupied.  There  was  no  direct  proof  that 
he  could  ever  retrieve  his  former  capacity. 
The  court  examined  him  at  some  length 
and  so  had  an  opportunity  to  form  an  esti- 
mate of  his  personality  as  a  matter  affect- 
ing his  probable  future  earriing  capacity. 
Held,  that  an  award  of  compensation  for 
partial  incapacity,  for  the  maximum,  period 
allowed  by  the  workmen's  compensation 
act,  and  in  a  lump  sum,  will  not  be  dis- 
turbed." 

While  an  employer  may  be  allowed  re- 
demption from  liability  under  an  award  of 
compensation  in  the  form  of  periodical  pay- 
ments, by  paying  80  per  cent  of  the  amount 
of  payments  that  will  become  due,  and 
while  an  employee  who  has  been  awarded 
compensation  in  periodical  payments  by 


BY  INCAPACITATED  EMPLOYEE. 


263 


tuted  by  a  person  dependent  on  a  work- 
man whose  death  results  from  an  injury, 
as  it  does  in  case  of  an  injured  work- 
man.76 

Under  the  New  Jersey  act,  it  is  neces- 
sary for  the  trial  judge,  before  awarding 
a  lump  sum,  to  determine  what  sum 
should  be  paid  periodically;  and  he 
should  also  state  the  method  by  which 
he  reached  his  result,  and  the  reasons 
that  induced  him  to  commute  the  peri- 
odical payments  into  a  lump  sum.77 

Where  the  fact  that  compensation  Avas 
owed  by  the  employer  to  the  dependents 
of  the  deceased  employee,  and  the  amount 
of  compensation,  were  conceded,  it  is  not 
necessary  to  institute  proceedings  for 
arbitration  before  commencing  a  pro- 
ceeding for  the  commutation  of  the  com- 
pensation to  a  lump  sum  under  §  5£  of 
the  act.78 

The  amount  of  the  lump  sum  to  be  paid 


in  commutation  of  the  weekly  payments 
is  the  present  value  of  such  payments.79 
The  amount  to  be  awarded  under  §  2  of 
the  New  Jersey  act  to  the  employee  is 
not  to  vary  according  to  his  age  or  the 
character  of  his  work  or  his  expectation 
of  life;  the  only  variance  between  the 
cases  of  different  employees  is  that 
caused  by  difference  in  wages  earned.80 

Where  the  statute  fixes  the  number  of 
weeks  that  the  payment  for  various 
specified  injuries  shall  continue,  it  is, 
of  course,  error  to  award  compensation 
for  a  longer  time.81  The  number  of  weeks 
specified  in  the  statute  is  not  to  be  re- 
duced by  the  first  two  weeks  after  the 
accident,  during  which  no  compensa- 
tion is  to  be  paid.82  Where  the  employee 
suffers  a  loss  other  than  those  losses  for 
which  provision  is  specifically  made,  the 
amount  payable  as  compensation  is  to 
bear  the  same  relation  to  the  amount 


agreement  or  arbitration  may  ask  for  and 
obtain  judgment  against  the  employer  for 
80  per  cent  of  the  sum  of  the  payments 
due  and  to  become  due  in  cases  where  there 
is  doubt  as  to  the  security  of  compensation, 
these  provisions  have  no  application  in  an 
action  for  compensation,  where  the  court, 
in  the  exercise  of  its  discretion,  enters  judg- 
ment for  a  lump  sum  in  the  first  instance. 
Roberts  v.  Charles  Wolff  Packing  Co.  (1915) 
95  Kan.  723,  149  Pac.  413  (headnote  by  the 
court). 

76  McCracken  v.  Missouri  Valley  Bridge 
&  Iron  Co.  (1915)  —  Kan.  — ,.  150  Pac.  832. 
The  Supreme  Court  held  that  the  trial 
court  did  not  abuse  its  discretion  in  grant- 
ing the  compensation  to  the  mother  of  a 
deceased  workman  in  a  lump  sum,  where 
she  was  entirely  dependent  upon  her  son's 
earnings  for  her  own  continued  existence, 
was  utterly  destitute,  with  no  income  of 
her  own,  and  was  physically  unable  to  earn 
her  own  living,  being  sixty-two  years  old. 

77Mockett  v.  Ashton  (1913)  84  N.  J.  L. 
452,  90  Atl.  127. 

The  determination  of  the  trial  judge  re- 
quired by  paragraph  20  of  the  New  Jersey 
act  should  set  forth  in  cases  where  weekly 
payments  are  commuted  to  a  lump  sum,  the 
basis  of  award  in  amount  for  a  week  and 
number  of  weeks;  the  commuted  amount 
being  expressly  predicated  on  such  finding. 
Long  v.  Bergen  County  Ct.  of  Common 
Pleas  (1913)  84  N.  J.  L.  117,  86  Atl.  529. 

A  direction  of  the  common  pleas  that  the 
weekly  payments  be  commuted  to  a  lump 
sum  pursuant  to  1j  21  of  the  act  should  be 
based  on  specific  findings  of  fact,  supported 
by  legal  evidence.  New  York  Shipbuilding 
Co.  v.  Buchanan  (1913)  84  N.  J.  L.  543,  87 
Atl.  86. 

78  The  proceedings  for  bringing  parties 
into  court,  under  §  5J  of  the  act,  relating 
to  the  commutation  of  compensation  to  a 
lump  sum,  are  regulated  by  the  act  itself, 
and  resort  need  not  be  had  to  the  general 
L.R.A.1916A. 


practice  act.  Staley  v.  Illinois  C.  R.  Co. 
(1914)  186  111.  App.  593. 

79  The  lump  sum  to  which  the  compensa- 
tion is  to  be  commuted  under  §  5*  of  the 
Illinois  act  of  1911  is  the  present  value  of 
the  full  sum  of  compensation  which  was 
to  be  paid  in  instalments.  (111.)  Ibid. 

In  commuting  the  periodical  payments  to 
a  lump  sum,  the  trial  judge  should  make 
the  lump  sum  equal  to  the  present  value  of 
the  periodical  payments;  and  it  is  error  to 
multiply  the  weekly  payment  by  the  num- 
ber of  weeks,  and  make  the  necessary 
credits.  James  A.  Banister  Co.  v.  Kriger 
(1913)  84  N.  J.  L.  30,  85  Atl.  1027,  rehear- 
ing denied  in  —  N.  J.  L.  — ,  89  Atl.  923. 

In  awarding  a  lump  sum,  it  is  error  not 
to  make  allowance  for  the  difference  in 
value  between  the  lump  sum  to  be  presently 
paid  and  the  value  of  the  weekly  payments 
to  be  made  thereafter.  Baur  v.  Court  of 
Common  Pleas  (1915)  --  N.  J.  L.  — ,  95 
Atl.  627. 

SOBateman  Mfg.  Co.  v.  Smith  (1913)  85 
N.  J.  L.  409,  89  Atl.  979,  4  N.  C.  C.  A.  588. 

81  An  award  of  compensation  for  a  total 
of  450  weeks  is  erroneous,  since  the  statute 
provides    that    in    no   case    shall    the    total 
number  of  weekly  payments  be  more  than 
400,  and  this  error  is  not  rendered  harmless 
by  the  reservation  of  right  to  a  modifica- 
tion in  case  of  an  earlier  termination  of  a 
temporary   disability.     Birmingham   v.   Le- 
high  &  W.  Coal  Co.   (1915)  —  N.  J.  L.  — , 
95  Atl.  242. 

82  The  provisions  in  fl   13,  that  no  com- 
pensation shall  be  allowed  for  the  first  two 
weeks  after  the  injury,  except  for  medical 
and    hospital    services,    does    not   have    the 
effect   of   reducing   from    thirty-five   weeks 
to  thirty-three  weeks  the  period  for  which 
compensation  is  to  be  paid  to  an  employee 
who  had  lost  the  first  finger,  or  a  phalange 
thereof.     James  A.  Banister  Co.  v.  Kriger 
(N.  J.)    supra. 


264 


WORKMEN'S  COMPENSATION. 


stated  in  the  schedule  as  the  disabilities 
bear  to  those  produced  by  the  injuries 
named  in  the  schedule,  but  the  payment 
period  is  for  the  full  time  stated  in  the 
schedule.83 

An  injured  workman  is  entitled  to 
the  minimum  compensation  of  $5  a 
week  provided  for  in  the  New  Jersey 
statute,  regardless  of  the  character  of 
the  injury.84 


An  award  of  compensation  may  be 
made  to  take  effect  as  of  the  date  ante- 
cedent to  the  date  of  application.88 

An  employer  is  entitled,  upon  an  award 
of  compensation  being  made  against  him, 
to  credit  for  any  payments  which  he  may 
have  made  to  the  workman  in  the  way 
of  compensation ;  86  he  is  also  entitled 
to  credit  for  any  amount  which  he  has 
paid  out  an  account  of  medical  or  hos- 


83  Where  an  employee  suffers  an  injury 
to  an  arm,  resulting  in  the  loss  of  thirty 
per  cent  of  the  use  thereof,  he  is  entitled 
to  30  per  cent  of  the  compensation  he  would 
have  been  entitled  to  for  the  total  loss  of 
the  arm  for  the  whole  period  of  200  weeks 
provided  for  in  the  statute;  and  if  the 
amount  per  week  does  not  amount  to  $5, 
then  the  minimum  provision  of  the  statute 
applies,  and  he  is  entitled  to  such  minimum 
amount  of  $5.  De  Zeng  Standard  Co.  v. 
Pressey  (1914)  86  N.  J.  L.  469,  92  Atl. 
278.  The  court  said  that  it  was  erroneous 
to  award  him  full  compensation  for  thirty 
per  cent  of  the  time,  but,  as  the  employee 
did  not  complain,  the  master  could  not. 

An  award  for  a  partial  injury  to  the 
motion  of  an  arm  of  the  same  compensation 
as  the  statute  fixes  for  the  loss  of  the 
arm  is  not  in  compliance  with  the  statutory 
mandate  that  the  compensation  shall  bear 
such  relation  to  the  amount  stated  in  the 
schedule  as  the  disabilities  bear  to  those 
produced  by  the  injuries  named  in  the 
schedule.  Barbour  Flax  Spinning  Co.  v. 
Hagerty  (1913)  85  N.  J.  L.  407,  89  Atl.  919, 
4  N.  C.  C.  A.  586. 

Where  the  statutory  allowance  is  of  400 
weeks'  pay  for  total  disability,  an  allow- 
ance for  340  weeks'  pay  for  injuries  con- 
sisting of  a  fracture  of  the  skull,  paralysis 
of  the  right  side  of  the  mouth,  and  injuries 
to  the  nostrils,  eye,  and  ear,  together  with 
the  impairment  of  the  use  of  the  right 
arm,  is  improper  where  it  appeared  that 
the  injuries  did  not  approach  total  disa- 
bility. O'Connell  v.  Simms  Magneto  Co. 
(1913)  85  N.  J.  L.  64,  89  Atl.  922,  4  N.  C. 
C.  A.  590. 

1  An  award  of  75  per  cent  on  what  the 
statute  fixes  for  an  arm  in  the  case  where 
a  workman's  forearm  and  hand  were  in- 
jured to  the  extent  of  75  per  cent,  and  his 
upper  arm  to  the  extent  of  8  per  cent, 
is  not  necessarily  incongruous  with  the 
'  statutory  provision  making  amputation  be- 
tween the  elbow  and  the  wrist  equivalent 
to  the  loss  of  a  hand  onlv.  Blackford  v. 
Green  (1915)  —  N.  J.  L.  — ,  94  Atl.  401. 
The  court  said  that  it  is  conceivable  that  a 
maimed  forearm  may  impair  the  efficiency 
of  the  whole  more  than  the  amputation 
between  the  wrist  and  the  elbow. 

A  workman  who  has  lost  80  per  cent  of 
the  usefulness  of  both  of  his  eyes  is  en- 
titled under  clause  b  of  the  New  Jersey  act 
to  80  per  cent  of  the  compensation  for  the 
total  loss  of  both  eyes,  which  amounts  to 
compensation  for  320  weeks.  Vishney  v. 
L.R.A.1916A. 


Empire  Steel  &  I.  Co.  (1915)  —  N.  J.  L.  — . 
95  Atl.  143. 

84  The  minimum  compensation  of  $5  per 
week,  provided  for  in  fl  11,  clause  a,  of  the 
New  Jersey  Laws  1911,  chapter  95,  applies 
in  the  case  of  an  employee  who  had  lost 
the  phalange  of  a  finger,  although  clause  c 
provides  that  the  loss  of  the  first  phalange 
of  any  finger  shall  be  considered  to  be  equal 
to  the  loss  of  one  half  of  the  finger,  and 
the  compensation  shall  be  one  half  of  the 
amount  justified  for  a  finger,  and  $5  is  all 
that  would  be  awarded  had  the  employee 
lost  his  entire  finger.  James  A.  Banister 
Co.  v.  Kriger  (1913)  84  N.  J.  L.  30,  85  Atl. 
1027,  rehearing  denied  in  —  N.  J.  L.  — , 
89  Atl.  1027. 

An  award  of  the  minimum  compensation 
of  $5  a  week  for  a  period  of  30  weeks  is 
proper  where  a  servant  suffers  a  total 
temporary  injury  to  a  finger  which  would 
entitle  him  to  an  award  of  $7.50  a  week,  or 
50  per  cent  of  his  wages  for  a  period  of 
six  weeks,  and  also  suffers  a  permanent 
injury  to  the  middle  finger  equal  to  the  loss 
of  one  half  of  the  phalange  of  that  finger, 
for  which  the  proper  award  would  be  one 
half  of  one  fourth  of  his  wages.  Maziarski 
v.  George  A.  Ohl  &  Co.  (1914)  86  N.  J. 
L.  692,  93  Atl.  110,  following  James  A. 
Banister  Co.  v.  Kriger  (1913)  —  N.  J.  L. 
— ,  89  Atl.  923. 

In  Barbour  Flax  Spinning  Co.  v.  Hagerty 
(1913)  85  N.  J.  L.  407,  89  Atl.  919,  4  N. 
C.  C.  A.  586,  where  there  was  an  award  for 
a  partial  injury  to  the  motion  of  the  arm 
of  the  same  compensation  as  the  statute 
fixed  for  the  loss  of  an  arm,  the  court  said : 
"The  petitioner  seeks  to  justify  this  al- 
lowance on  the  authority  of  James  A.  Ban- 
ister Co.  v.  Kriger  (1913)  84  N.  J.  L.  30, 
85  Atl.  1027.  That  case,  however,  arose 
under  a  different  provision  of  the  act; 
the  number  of  weeks  for  which  the  allow- 
ance was  to  be  made  was  fixed  by  the 
statute.  It  was  only  the  amount  that  was 
subject  to  variation,  and  variation  was  pre- 
vented by  the  clause  fixing  a  minimum  of 
$5  per  week.  The  legislature  seems  to  have 
thought  our  construction  too  liberal  to  the 
employee,  for  it  amended  the  act  in  1913, 
immediately  after  our  decision.  Pamph.  L. 
pp.  302,  304." 

85  Hunnewell's    Case     (1915)     220    Mass. 
351,  107  N.  E.  934. 

86  In  Barbour  Flax  Spinning  Co.  v.  Hag- 
erty (1914)   85  N.  J.  L.  407,  89  Atl.  919,  4 
N.  C.  C.  A.  586,  where  the  case  shows  that 
the   amount    allowed   by    the    statute    was 
paid  during  fifty-two   weeks,  and  that  no 


INSURANCE  FUNDS. 


265 


pital  bills  for  the  injured  employee.87 
But  payments  made  in  excess  of  the 
amount  of  compensation  due  the  work- 
man will  not  be  credited  against  future 
compensation.88  So,  under  the  New  Jer- 
sey statute,  the  period  of  time  during 
which  a  master  re-employed  the  servant 
after  an  injury,  at  the  same  wages  as  be- 
fore the  accident,  is  not  to  be  deducted 
from  an  award  for  total  disability.89 

XL.  Insurance  funds. 

Under  the  statutes  providing  compen- 
sation by  means  of  an  industrial  insur- 
ance fund,  the  questions  sometimes  arise 
as  to  the  manner  in  which  the  fund  shall 
be  collected  and  handled. 

Under  §  17  of  the  Washington  act, 
with  reference  to  the  application  of  the 
act  where  the  state,  county,  or  municipal 
corporation  shall  engage  in  any  extra- 
hazardous  work,  the  city  is  authorized 
to  withhold  from  a  contractor  the  amount 
which  he  is  obligated  to  pay  into  the 
accident  fund.90  But  claims  for  pre- 
miums or  contributions  to  the  state  insur- 
ance fund  are  not  entitled  •  to  priority 
over  a  debt  secured  by  a  mortgage  to  a 
private  person.91 

The  right  of  the  state  to  collect  prem- 
iums for  the  insurance  fund  from  em- 
ployers under  contract  with  municipal- 
ities is  not  waived  by  a  failure  to  make 
a  preliminary  collection  upon  the  pay 
roll  of  the  employer  "of  the  last  pre- 


ceding three  months  of  operation"  prior 
to  the  taking  effect  of  the  law,  and  wait- 
ing before  attempting  to  collect  until 
the  employer's  contracts  were  completed, 
and  then  calculating  the  percentages 
upon  the  actual  pay  rolls  during  the 
period  for  which  the  contractors  were 
liable.92 

Work  done  on  the  construction  of  a 
tunnel  should  be  classified  as  tunnel 
construction  work,  although  the  tunnel 
is  for  a  railroad  and  the  schedule  pro- 
vides for  a  classification  of  "steam  rail- 
road construction  work,"  for  which  a 
different  rate  of  premium  is  required.93 

The  industrial  insurance  fund  of  Ne- 
vada, although  required  by  the  compen- 
sation law  (Laws  of  1913,  chap.  Ill)  to 
be  paid  to  the  state  treasurer,  is  not  a 
part  of  the  "state  treasury,"  so  as  to  re- 
quire claims  against  the  fund  to  be  pre- 
sented to  the  board  of  examiners  to  be 
passed  on  by  the  board,  and  the  is- 
suance of  warrants  by  the  comptroller.94 

Premiums  on  an  insurance  policy  is- 
sued in  accordance  with  the  workmen's 
compensation  law  (Laws  1910,  chap. 
674)  may  be  recovered  although  the  law 
was  subsequently  declared  unconstitu- 
tional, where  the  decision  was  handed 
down  after  the  expiration  of  the  term 
of  the  policy.95 

An  employer  who  carries  his  own  in- 
surance obtains  no  immunity  from  lia- 
bility which  would  ascertain  to  a  stock 
corporation  or  mutual  association,  had 


credit  was  given  by  the  trial  court  for  this 
payment,  and  the  petition  averred  that  it 
was  received  from  the  insurance  company 
of  the  defendant,  and  the  admission  was 
made  at  the  trial  that  it  was  paid  by  the 
defendant,  the  court  said:  "If  that  is  true, 
or  if  the  premium  for  the  insurance  had 
been  paid  by  the  defendant,  credit  should 
have  been  given.  If,  however,  the  payment 
was  by  virtue  of  insurance  paid  for  by  the 
petitioner,  the  defendant  is  entitled  to  no 
credit  therefor." 

87  Cain   v.   National   Zinc   Co.    (1015)    - 
Kan.  — ,  148  Pac.  251. 

88  An  employer  who  pays  to  an   injured 
employee  for  a  number  of  weeks  after  the 
injury  a  weekly  sum  in  excess  of  the  com- 
pensation  legally  payable   is,   upon   a   pro- 
ceeding  for   the   recovery   of  compensation, 
to  be  credited  with  the  payment  of  the  le- 
gal compensation  for  the  number  of  weeks 
in  which  the  payment  had  been  made,  less 
two,  since  the  trial  judge  was  justified  in 
finding    that    the    payments    made    during 
the   first   two   weeks,   when    there   was   no 
liability   to   make   compensation,   were   not 
made  on  account  of  the  statutory  compen- 
sation, and  the  presumption  was  that  the 
excess  was  paid  to  the  workman  for  labor 
L.R.A.1936A. 


performed,  or  in  a  spirit  of  benevolence. 
Blackford  v.  Green  (1915)  --  N.  J.  L.  — , 
94  Atl.  401. 

89  De  Zeng  Standard  Co.  v.  Pressey  (1914) 
86  N.  J.  L.  469,  92  Atl.  278. 

90  State  ex  rel.  Pratt  v.  Seattle  (1913)  73 
Wash.  396,  132  Pac.  45.     The  court  said  it 
was    true    that   the    method    by    which    the 
collection    was    to    be   made    was    not    pre- 
scribed  by   the   statute,  but   that   the   city 
was  authorized  to  collect  it  by  withholding 
it  from  the  amount  due  to  the  contractors. 

91  Mississippi  Valley  Trust  Co.  v.  Oregon- 
Washington    Timber    Co.    (1914)    213    Fed. 
988. 

92  State  ex  rel.  Pratt  v.  Seattle   (Wash.) 
supra.     The  court  said  that  while  possibly 
the  more  regular  way  would  have  been  to 
make  the  preliminary  collection,  nevertheless 
the  method  pursued  by  the  state  could  work 
no  hardship  upon  the  employers,  and  they 
therefore  could  not  complain. 

98  State  v.  Chicago,  M.  &  P.  S.  R.  Co. 
(1914)  80  Wash.  435,  141  Pac.  897. 

»4  State  ex  rel.  Beebe  v.  McMillan  (1913) 
36  Nev.  383,  136  Pac.  108. 

95  New  Amsterdam  Casualty  Co.  v.  01- 
cott  (1915)  165  App.  Div.  603,  150  N.  Y. 
Supp.  772. 


266 


WORKMEN'S  COMPENSATION. 


it  instead  of  the  employer  been  the  car- 
rier of  the  insurance.96 

XLl.  Appeal  and  review. 

Findings   of  fact   by   the   Commission 


or  trial  court  are  conclusive,97  and  will 
not  be  disturbed  by  the  appellate  court 
if  there  is  any  evidence  to  support 
them,98  although  the  court  in  trying  the 
facts  might  have  reached  a  different  con- 


96  Kenny  v.  Union  R.  Co.  (1915)  166  App. 
Div.  497,  152  N.  Y.  Supp.  117,  8  N.  C.  C.  A. 
986. 

97  Diaz's  Case    (1914)    217   Mass.   36,   104 
N.  E.  384,  5  N.  C.  C.  A.  609;  Donovan's  Case 
(1914)    217   Mass.  76,  104  N.  E.  431,  Ann. 
Cas.  191.5C,  778,  4  N.  C.  C.  A.  549;  Bentley's 
Case   (1914)  217  Mass.  79,  104  N.  E.  432,  4 
N.  C.  C.  A.  559;  Herrick's  Case   (1914)   217 
Mass.  Ill,  104  N.  E.  432,  4  N.  C.  C.  A.  554; 
Janes's  Case   (1914)   217  Mass.  192,  104  N. 
E.  556,  4  N.  C.  C.  A.  552;   Johnson's  Case  | 

(1914)  217  Mass.  388,  104  N.  E.  735,  4  N. 
C.  C.  A.  843;  Plass  v.  Central  New  England 
R.  Co.    (1915)   —  App.  Div.  — ,   155   N.  Y. 
Supp.  854;   Powley  v.  Vivian  &  Co.   (1915) 
169  App.  Div.  170,  154  N.  Y.  Supp.  426. 

Under  its  supervisory  power  over  the  Pub- 
lic Service  Commission  respecting  its  admin- 
istration of  the  workmen's  compensation 
act,  the  West  Virginia  supreme  court  takes 
cognizance  of  the  questions  of  law  only. 
Poccardi  v.  Public  Service  Commission 

(1915)  —  W.  Va.  — ,  post,  299,  84  S.   E. 
242,  8  N.  C.  C.  A.  1065. 

The  superior  court  cannot  retry  the  facts, 
and  an  appeal  to  that  court  from  the  find- 
ings and  award  made  by  a  commissioner 
under  the  act  is  not  a  trial  de  novo.  Hotel 
Bond  Co.'s  Appeal  (1915)  89  Conn.  143,  93 
Atl.  245. 

The  findings  of  fact  as  to  the  petitioner's 
incapacity,  made  by  the  superior  court,  are 
conclusive  on  appeal.  Weber  v.  American 
Silk  Spinning  Co.  (1915)  --  R.  I.  — ,  95 
Atl.  603. 

98Burns's  Case    (1914)    218  Mass.  8,  105 
N.  E.  601,  5  N.  C.  C.  A.  635;   Nickerson's 
Case   (1914)  218  Mass.  158,  105  N.  E.  604, 
5  N.   C.  C.  A.  645;   Buckley's  Case    (1914)  j 
218  Mass.  354,  105  N.  E.  979,  5  N.  C.  C.  A.  | 
613;    Meley's   Case    (1914)    219    Mass.    136,! 
106  N.  E.  559;   Septimo's  Case   (1914)    219! 
Mass.  430,  107  N.  E.  63,  7  N.  C.  C.  A.  906;  , 
Rayner  v.   Sligh   Furniture  Co.    (1914)    180 
Mich.  168,  ante,  22,  146  N.  W.  665,  4  N.  C. 
C.  A.  851;   Hills  v.  Blair   (1914)    182  Mich. 
20,  148  N.  W.  243,  7  N.  C.  C.  A.  409 ;  Spooner 
v.   Detroit    Saturday   Night   Co.    (1915)    - 
Mich.  — ,  ante,  17,  153  N.  W.  657;  Redfield 
v.  Michigan  Workmen's  Compensation  Mut. 
Ins.  Co.  (1915)  183  Mich.  633,  150  N.  W.  362, 
8  N.  C.  C.  A.  889;  Goldstein  v.  Center  Iron 
Works  (1915)  167  App.  Div.  526,  153  N.  Y. 
Supp.  224 ;  Hoenig  v.  Industrial  Commission 
(1915)   159  Wis.  646,  post,  339,  150  N.  W. 
996,  8  N.  C.  C.  A.  192;  International  Har- 
vester Co.  v.  Industrial  Commission   (T914) 
157  Wis.  167,  147  N.  W.  53,  5  N.  C.  C.  A. 
822;   Eagle  Chemical  Co.  v.  Nowak   (1915) 
—  Wis.  — ,  154  N.  W.  636;  First  Nat.  Bank 
v.    Industrial    Commission    (1915)    -  -    Wis. 
— ,   154   N.  W.   847;    Fairchild  v.   Pennsyl- 
vania R.  Co.  (1915)  —  App.  Div.  — ,  155  N. 
Y.  Supp.  751. 

When  a  judgment  of  the  court  of  common 
L.R.A.1916A. 


pleas  awarding  compensation  in  case  of 
death  is  removed  to  the  supreme  court  by 
certiorari,  the  supreme  court  accepts  the 
finding  of  the  common  pleas  court  upon  the 
facts,  if  there  be  any  legal  evidence  to  war- 
rant them.  Sexton  v.  Newark  Dist.  Teleg. 
Co.  (1913)  84  N.  J.  L.  85,  86  Atl.  451,  3 
N.  C.  C.  A.  569,  affirmed  86  N.  J.  L.  701, 
91  Atl.  1070;  Bryant  v.  Fissell  (1913)  S4 
N.  J.  L.  72,  86  Atl.  458,  3  N.  C.  C.  A.  585 

Where  the  employer  and  employee  assent, 
whether  expressly  or  by  implication  of  the 
statute,  to  the  workmen's  compensation  act, 
they  assent  to  the  whole  scheme  of  the  act, 
a  part  of  which  is  that  the  decision  of  the 
trial  judge  as  to  all  questions  of  fact  shall 
be  conclusive  and  binding,  and  that  the  su- 
preme court  will  not  review  his  finding  as 
to  the  duration  of  liability  where  the  evi- 
dence permits  it.  Scott  v.  Payne  Bros. 
(1913)  85  N.  J.  L.  446,  89  Atl.  927,  4  N.  C. 
N.  C.  682. 

If,  in  any  reasonable  view  of  the  evidence, 
it  will  support,  either  directly  or  by  fair 
inference,  the  findings  made  by  the  Com- 
mission, then  such  findings  are  conclusive 
upon  the  court.  Milwaukee  v.  Industrial 
Commission  (1915)  160  Wis.  238,  151  N.  W. 
247.  The  court  said:  "It  is  not  the  scheme 
of  the  act  to  make  the  court  a  reviewer  of 
facts.  Its  office  is  to  relieve  against  fraud, 
to  keep  the  Commission  within  its  jurisdic- 
tional  bounds,  and  to  correct  an  award  not 
supported  by  the  facts  found." 

The  finding  that  an  employee  had  lead 
poisoning  must  stand,  if  there  was  some 
testimony  to  support  it.  Re  Dohertv  (1915) 
-  Mass.  — ,  109  N.  E.  887. 

The  finding  by  a  committee  on  arbitra- 
tion affirmed  by  the  Industrial  Accident 
Board,  that  the  accident  occurred  while  the 
employee  was  in  the  employment  of  the  de- 
fendant, is  conclusive  where  there  is  some 
evidence  to  support  it.  Grove  v.  Michigan 
Paper  Co.  (1915)  —  Mich.  — ,  151  N.  W.  554. 

Where  there  is  evidence  to  support  the 
finding  of  the  Industrial  Accident  Board 
that  the  injury  did  not  arise  by  reason  of 
the  intentional  and  wilful  misconduct  of  the 
employee,  such  finding  is  conclusive  on  the 
court  on  certiorari.  Rayner  v.  Sligh  Furni- 
ture Co.  (1914)  180  Mich.  168,  ante,  22,  146 
N.  W.  665,  4  N.  C.  C.  A.  851. 

The  Minnesota  supreme  court  cannot  in- 
terfere with  a  finding  of  the  district  court 
that  an  employee  was  not  intoxicated  at 
the  time  of  his  death,  where  there  was  evi- 
dence tending  to  support  such  finding. 
State  ex  rel.  Nelson-Spelliscy  Implement 
Co.  v.  District  Ct.  (1914)  128  Minn.  221,  150 
N.  W.  623. 

The  question  of  dependency  of  the  claim- 
ant for  the  death  of  an  employee  is  settled 
by  the  findings  of  the  commissioner  in  the 
absence  of  anything  to  indicate  error  of  law 
in  making  the  findings,  or  drawing  conclu- 


APPEAL  AND  REVIEW. 


267 


elusion."  The  finding  of  the  Industrial 
Accident  Board  stands  upon  the  same 
footing  as  the  verdict  of  a  jury  or  a 
finding  of  the  court,  and  will  not  be  set 
aside  unless  wholly  unsupported  by  the 
evidence;  l  in  the  absence  of  conflict  in 
the  evidence  that  goes  to  show  a  claim- 
ant's right  to  participation  in  the  work- 
men's compensation  fund,  the  Commis- 
sion is  regarded  in  the  supreme  court  as 
a  demurrant  to  the  evidence,  and  if  the 
evidence  would  sustain  a  verdict  of  the 
jury  in  favor  of  the  claimant,  the  claim 
is  regarded  as  sufficiently  proved.2  So, 


findings  based  on  disputed  questions  of 
fact  or  conflicting  evidence  cannot  be 
set  aside.3 

But  a  Commission  or  trial  court  can- 
not make  an  award  not  supported  by  any 
evidence ; 4  nor  can  it  base  an  award  on 
mere  conjecture  or  surmise ;  5  nor,  ac- 
cording to  the  weight  of  authority,  can 
it  base  an  award  on  hearsay  evidence 
only.6  The  hearsay  rule  of  evidence  is 
not  a  "technical"  rule  of  evidence,  with- 
in the  meaning  of  §  77  of  the  California 
act,  which  provides  that  the  Commission 
shall  not  be  bound  by  the  technical 


sions  from  them.  Kennerson  v.  Thames 
Towboat  Co.  (1915)  89  Conn.  367,  post,  436, 
94  Atl.  372. 

An  award  of  compensation  as  for  the 
loss  of  the  use  of  the  hand  will  not  be  in- 
terfered with  where  it  was  made  by  con- 
sent of  the  attorney  representing  the  ap-  | 
pellant.  Cunningham  v.  Buffalo  Copper  & 
Brass  Rolling  Mills  (1915)  -  -  App.  Div. 
— ,  155  N.  Y.  Supp.  797. 

The  findings  of  the  Commission  upon  the 
question  whether  or  not  the  accident  was 
one  arising  out  of  and  in  the  course  of  the 
employment  is  conclusive  upon  the  fact  if 
there  is  some  evidence  to  support  them. 
Kingsley  v.  Donovan  (1915)  —  App.  Div. 
— ,  155  N.  Y.  Supp.  801. 

W  Milwaukee  Coke  &  Gas  Co.  v.  Industrial 
Commission  (1915)  160  Wis.  247,  151  N. 
W.  245. 

1  Pigeon's  Case  (1913)  216  Mass.  51,  102 
N.  E.  932,  Ann.  Cas.  1915A,  737,  4  N.  C. 
C.  A.  516;  Re  McPhee   (1915)  —  Mass.  — , 
109  N.  E.  633;  Re  Savage   (1915)   —  Mass. 
— ,  110  N.  E.  283. 

2  Poccardi   v.   Public   Service   Commission 
<1915)    --  W.  Va.  — ,  post,  299,  84  S.  E. 
242,  8  N.  C.  C.  A.  1065. 

8  An  order  of  the  court  of  common  pleas 
based  upon  disputed  questions  of  fact  will 
not  be  set  aside.  Jackson  v.  Erie  R.  Co. 
(1914)  86  N.  J.  L.  550,  91  Atl.  1035,  6  N. 
C.  C.  A.  944. 

The  disposition  by  the  Commission  of 
questions  of  fact  on  which  the  evidence  was 
conflicting  is  final  and  conclusive  upon  the 
court  upon  a  review  on  certiorari.  Western 
Indemnity  Co.  v.  Pillsbury  (1915)  —  Cal. 
— ,  151  Pac.  398. 

*  International    Harvester    Co.    v.    Indus- 
trial Commission   (1914)   157  Wis.  167,  147 1 
N.  W.  53,  5  N.  C.  C.  A.  822. 

An  award  of  compensation  made  without 
proof  that  the  injury  was  caused  "by  acci- 
dent arising  out  of  and  in  the  course  of  the 
employment"  must  be  annulled  when  at- 
tacked on  certiorari.  Englebretson  v.  In- 
dustrial Acci.  Commission  (1915)  --  Cal. 
— ,  151  Pac.  421. 

Upon  a  rescript  of  the  record  to  the  In- 
dustrial Accident  Board  for  correction  and 
amplification,  the  Board  has  no  power  to 
make  a  new  finding.  Re  Doherty  (1915) 
-  Mass.  — ,  109  N.  E.  887. 

The  supreme  judicial  court  will,  where  all 
the  material  evidence  is  reported,  take  cog- 
L.R..A.1916A. 


nizance  of  the  contention  that  the  finding  of 
the  majority  of  the  committee  of  arbitra- 
tion as  affirmed  by  the  Industrial  Accident 
Board,  and  in  turn  by  the  superior  court, 
is  not  supported  by  the  evidence  reported. 
Fisher's  Case  (1915)  220  Mass.  581,  108  N. 
E.  361. 

If  the  record  discloses  that  a  finding  of 
fact  is  entirely  without  legal  evidence  tend- 
ing to  support  it,  such  finding  amounts  to 
an  error  of  law,  and  will  be  reviewed  by 
the  court  upon  appeal  and  set  aside.  Jillson 
v.  Ross  (1915)  —  R.  I.  — ,  94  Atl.  717. 

5  Facts  found  by  the  Industrial  Accident 
Board,  to  be  conclusive,  must  be  based  on 
competent  legal  evidence,  and  not  on  bare 
supposition,    guess,    or    conjecture,    nor    on 
rumor    or    incompetent    evidence,      xteck    v. 
Whittlesberger    (1914)    181    Mich.   463,    148 
N.  W.  247. 

6  An  award  based  merely  on  hearsay  evi- 
dence    cannot    be     sustained.       Employers' 
Assur.  Corp.  v.  Industrial  Acci.  Commission 
(1915)  —  Cal.  — ,  151  Pac.  423. 

Hearsay  evidence  cannot  be  made  the 
basis  of  a  finding  of  fact.  Reck  v.  Whittles- 
berger (Mich.)  supra.  The  court  said  that, 
while  it  is  the  intent  of  the  compensation 
act  to  adjust  controversy  by  concise  and 
summary  proceedings,  unhampered  by  tech- 
nical form,  yet  the  elementary  and  funda- 
mental principles  of  a  judicial  trial  must  be 
observed,  and  it  is  not  the  intent  of  the 
act  to  throw  aside  all  safeguards  by  which 
judicial  investigations  are  recognized  as 
best  protected. 

Although  the  Industrial  Accident  Board 
is  not  a  court  in  the  strict  meaning  of  the 
word,  and  its  members  are  not  judicia1 
officers  within  the  Constitution,  neverthe- 
less such  board  may  be  considered  a  court 
within  the  meaning  of  Revised  Laws,  chap. 
175,  §  66,  which  provides  that  "a  declara- 
tion of  a  deceased  person  shall  not  be  in- 
admissible in  evidence  as  hearsay,  if  the 
court  finds  that  it  was  made  in  good  faith 
before  the  commencement  of  the  action, 
and  upon  the  personal  knowledge  of  the 
declarant."  Pigeon's  Case  (1913)  216  Mass. 
51,  102  N.  E.  932,  Ann.  Cas.  1015A,  737, 
4  N.  C.  C.  A.  516.  The  court  further  held 
that  the  word  "action,"  as  used  in  the  latter 
part  of  the  statute  quoted  above,  would  be 
construed  to  embrace  proceedings  under  the 
compensation  act. 


268 


WORKMEN'S  COMPENSATION. 


rules  of  evidence.7  But  the  decisions  of 
the  Commission  or  trial  court  need  not 
in  all  cases  be  reversed  under  the  rule 
of  presumptive  prejudice  because  of  er- 
ror in  the  admission  of  incompetent  or 
hearsay  testimony,  if  there  appears  in 
the  record  a  legal  basis  for  the  finding.8 

It  has  been  held,  however,  that  under 
the  New  York  act  the  Commission  is  au- 
thorized to  receive  hearsay  evidence,  and 
to  base  its  findings  upon  it.9 

Where  the  evidence  is  not  reported  it 
cannot  be  found  as  a  matter  of  law  that 


7  The  California  courts  will  merely  annul 
an  award  which  was  made  on  hearsay  evi- 
dence only,  leaving  the  Commission  to  pro- 
ceed with   a  further  hearing,  where   it  ap- 
pears that  competent  evidence  of  the  facts 
might    be    produced.      Englebretson    v.    In- 
dustrial   Acci.    Commission    (1915)    —    Cal. 
— ,  151  Pac.  421. 

8  The   unrestricted   admission   of   hearsay 
testimony  by  the  Industrial  Accident  Board 
is  not  reversible  error  where  there  appears 
in  the  record  a  legal  basis  for  its  findings, 
which  are  made  conclusive  by  the  statute 
when  said  Board  acts  within  the  scope  of 
its   authority.     Fitzgerald   v.   Lozier   Motor 
Co.  (1915)  —  Mich.  — ,  154  N.  W.  67. 

The  decisions  of  the  Industrial  Accident 
Board  are  not  in  all  cases  to  be  reversed 
under  the  rule  of  presumptive  prejudice 
merely  because  of  the  error  in  the  admis- 
sion of  incompetent  testimony,  when,  in 
the  absence  of  fraud,  there  appears  in  the 
record  a  legal  basis  for  its  findings,  which 
are  made  conclusive  by  the  statute.  Reck 
v.  Whittlesberger  (1914)  181  Mich.  463,  148 
N.  W.  247. 

A  decree  will  not  be  reversed  for  error  on 
questions  of  evidence,  unless  substantial 
rights  of  the  parties  appear  to  have  been 
affected.  Pigeon's  Case  (1913)  216  Mass. 
51,  102  N.  E.  932,  Ann.  Cas.  1015A,  737. 

The  admission  of  incompetent  evidence 
will  not  operate  to  reverse  the  award,  if 
there  be  any  basis  in  the  competent  evi- 
dence to  support  it.  First  Nat.  Bank  v. 
Industrial  Commission  (1915)  --  Wis.  — , 
154  N.  W.  846. 

The  Industrial  Commission,  acting  as  an 
administrative  board,  is  not  held  to  the 
same  strict  rule  with  respect  to  ruling  on 
the  admission  of  evidence  as  courts  of  law. 
(Wis.)  Ibid. 

9  Carroll  v.  Knickerbocker  Ice  Co.   (1915) 
-  App.  Div.  — ,  155  N.  Y.   Supp.  1.     The 

court  said:  "Subdivision  2  of  §  67  also 
provides  that  the  Commission  shall  adopt 
rules  providing  the  'nature'  of  the  evidence 
to  be  accepted  by  it.  As  to  proceedings  be- 
fore the  Commission,  these  two  sections 
wholly  abrogate  the  substantive  law  of 
evidence, — abrogate  the  common  law,  the 
statute  law,  the  rules  of  procedure  formu- 
lated by  the  courts,  and  all  the  technical- 
ities respected  by  the  legal  profession.  The 
Commission  is  authorized  by  this  section,  it 
seems,  to  make  its  investigation  in  any 
manner  that  it  chooses,  wholly  unfettered 
L.R.A.1936A. 


findings  are  not  warranted.10  Conse- 
quently, it  is  the  duty  of  the  tribunal 
trying  the  facts  to  report  the  evidence 
upon  which  the  findings  are  based.11  A 
general  finding  that  the  petitioner  was. 
permanently  injured,  without  stating  the 
nature  of  the  injury,  is  insufficient.12 

Neither  party  is,  as  a  matter  of  right, 
entitled  to  a  rehearing  upon  questions 
of  fact.18 

In  the  absence  of  fraud,  matters  not 
raised  below  cannot  be  heard  on  ap- 

by  any  law  previously  invented  by  man. 
This  is  the  spirit  of  the  statute.  The  Com- 
mission is  to  be  bound  neither  by  custom 
nor  by  precedent.  The  trials  before  the 
Commission  are  to  be  summary,  speedy,  and 
informal.  The  very  instant  that  the  old 
rules  of  evidence  are  invoked,  the  informal 
character  of  the  hearing  disappears,  and  the 
rigid  formal  rules  of  procedure  and  all  the 
technicalities  incident  to  the  practice  of 
the  law  will  grow  up  around  the  Commis- 
sion, hampering  and  delaying  it,  working- 
inconvenience  and  hardship  upon  the  claim- 
ants, and  defeating  the  intent  of  the  law." 
lOBentley's  Case  (1914)  217  Mass.  79, 
104  N.  E.  432,  4  N.  C.  C.  A.  559;  Young  v. 
Duncan  (1914)  218  Mass.  346,  106  N.  E. 
1;  Septimo's  Case  (1914)  219  Mass.  430, 
107  N.  E.  63,  7  N.  C.  C.  A.  906. 

11  It   will   not  be  presumed   that,   in   the 
absence   of   an   express   statement,   the   In- 
dustrial   Accident    Board    reported    all    the 
evidence  before  it;  but  it  will  be  presumed 
that  the  committee  on   arbitration  did  so, 
since  the  statute  imposes  upon  such  com- 
mittee the  positive  duty  so  to  do.     Bright- 
man's  Case  (1914)  220  Mass.  17,  post,  321, 
107  N.  E.  527,  8  N.  C.  C.  A.  102. 

Where  the  Industrial  Accident  Board  re- 
cites in  its  decision  that  it  "heard  the 
parties,"  and  also  that  it  "affirms  and 
adopts  the  findings  of  the  committee  of 
arbitration,"  and  the  report  of  the  com- 
mittee of  arbitration  states  that  "the  ma- 
terial testimony  was  substantially  as  fol- 
lows," following  with  the  testimony  of 
certain  witnesses  including  that  of  the  em- 
ployee, the  supreme  court  cannot  assume 
that  all  the  evidence  upon  which  the  In- 
dustrial Accident  Board  made  its  findings 
and  decisions  was  before  it.  in  the  absence 
of  any  statement  on  the  record  to  that 
effect;  consequently,  it  cannot  interfere 
with  the  findings  of  the  Board.  Stickley's 
Case  (1914)  219  Mass.  513,  107  N.  E.  350. 

12  In  cases  arising  under  §  2  of  the  New 
Jersey  act,  the  statement  of  fact  as  deter- 
mined by  the  trial  judge,  required  by  para- 
graph 20,  should  be  specific  as  to  the  nature 
and  extent  of  the  injury,  so  that  the  review- 
ing court  may  be  enabled  to  judge  of  the 
propriety  .of  the  award  as  supported  by  the 
facts   found.      Long   v.   Bergen   County   Ct. 
(1913)  84  N.  J.  L.  117,  86  Atl.  529. 

13  Notwithstanding   the   provision   of   the 
statute  that  no  party  shall,  as  a  matter  of 
right,  be  entitled  to  a  second  hearing  upon 


APPEAL  AND  REVIEW. 


269 


peal.14  So,  upon  an  application  for  a 
rehearing  before  the  Industrial  Accident 
Commission,  any  point  not  made  in  the 
application  for  rehearing,  or  not  set 
forth  specifically  and  in  full  detail,  must 
be  held  to  be  waived.16 

While  it  is  conceded  that  the  power 
of  the  appellate  court  is  limited  to  ques- 
tions of  law,  there  is  frequently  a  dis- 
pute as  to  what  constitutes  a  question  of 
law  such  as  may  be  reviewed  by  the 
court.  It  has  been  held  that  under  the 
law  the  court  can  reverse  an  award  on 
the  ground  of  the  insufficiency  of  evi- 
dence only  when  there  is  no  evidence 
before  the  Commission  tending  to  sup- 
port it ; 16  and  that  a  provision  in  the 
act  for  appeal  to  the  supreme  court  upon 
questions  of  law  does  not  refer  to  the 
question  of  the  sufficiency  of  evidence  in 
the  sense  of  the  weight  and  preponder- 
ance of  the  evidence.17  But  under  the 
Massachusetts  statute,  it  has  been  held 
that  where  all  the  evidence  is  reported, 
the  sufficiency  of  such  evidence  to  sup- 
port the  finding  of  the  Industrial  Acci- 
dent Board  is  a  question  of  law,  and  is 
reviewable  by  the  supreme  court.18 


Under  the  New  York  act,  appeals  from 
the  decisions  of  the  appellate  division 
of  the  supreme  court  to  the  court  of  ap- 
peals are  subject  to  the  same  limitations 
as  are  provided  for  in  other  civil  ac- 
tions; and  consequently  there  can  be  no 
appeal  to  the  higher  court  from  a  unan- 
imous decision  of  the  appellate  division, 
where  the  latter  court  or  a  judge  of  the 
court  of  appeals  does  not  expressly  al- 
low such  an  appeal.19 

Under  the  New  York  act  an  em- 
ployer who  is  insured  in  the  state 
insurance  fund  cannot  appeal  from  a 
decision  of  the  Commission  awarding 
compensation  to  one  of  his  injured 
employees.19* 

Questions  as  to  the  jurisdiction  of  the 
trial  court  or  Commission  are  questions 
of  law.20  It  has  been  held  by  the  Con- 
necticut court  that  it  cannot,  upon  ap- 
peal from  the  compensation  commission- 
er, retry  the  facts,  but  it  can  inquire 
into  them  merely  to  determine  whether 
the  award  is  unauthorized  at  law,  ir- 
regular, or  informal,  or  based  upon  a 
misconception  of  the  law  or  of  the  pow- 
ers or  duties  of  the  commissioner,  or  is 


any  question  of  fad;,  a  rehearing  was  grant- 
ed in  a  case  where  the  Industrial  Accident 
Board  or  the  Arbitration  Commission  may 
have  misconceived  its  power  to  draw  infer- 
ences from  matters,  or  base  conclusions  up-  j 
on  information,  outside  the  evidence,  or  for 
some  other  reason  the  employee  may  have  I 
failed  to  present  his  real  case.     Re  Doherty 
(1915)  —  Mass.  — ,  109  N.  E.  887. 

1*  In  order  that  questions  as  to  the  ad- 
missibility  of  evidence  before  the  Industrial 
Accident  Board  may  be  considered  by  the 
Massachusetts  supreme  court  of  appeals, 
objections  must  be  made  before  the  Board. 
Duprey's  Case  (1914)  219  Mass.  189,  106 
N.  E.  686. 

Affidavits  as  to  the  previous  condition  of 
the  health  of  the  applicant  cannot  be  con- 
sidered by  the  court,  where  they  have  not 
been  filed  in  the  proceedings  in  any  manner 
or  at  any  stage  thereof.  Poccardi  v.  Public 
Service  Commission  (1915)  --  W.  Va.  — , 
post,  299,  84  S.  E.  242. 

In  an  action  under  the  Wisconsin  act, 
evidence  cannot  be  offered  in  an  appeal  to 
the  district  court  except  upon  the  question 
of  fraud.  International  Harvester  Co.  v. 
Industrial  Commission  (1914)  157  Wis.  167, 
147  N.  W.  53,  5  N.  C.  C.  A.  822. 

The  California  supreme  court  cannot  re- 
view the  proceedings  of  the  Industrial  Acci- 
dent Commission  of  the  state  of  California 
on  the  ground  that  the  findings  of  the  Com- 
mission are  not  sustained  by  the  evidence, 
and  that  the  applicant  has  discovered  new 
evidence  material  to  him.  Cardoza  v.  Pills- 
bury  (1915)  —  Cal.  — ,  145  Pac.  1015.  The 
court  stated  that  the  grounds  alleged  were 
ones  upon  which  the  Commission  itself 
could  grant  a  rehearing  under  §  82,  but 
L.R.A.1936A. 


that  the  courts  are  restricted  to  the  grounds 
stated  in  §  84  of  the  act. 

16  Pacific  Coast  Casualty  Co.  v.  Pillsbury 
(1915)  —  Cal.  — ,  151  Pac.  658. 

16  Heileman  Brewing  Co.  v.  Schultz  (1915) 
—  Wis.  — ,  152  N.  W.  446. 

l7Jillson  v.  Ross  (1915)  —  R.  I.  — ,  94 
Atl.  717. 

"Buckley's  Case  (1914)  218  Mass.  354, 
105  N.  E.  979,  5  N.  C.  C.  A.  613. 

l»Hartnett  v.  Thomas  J.  Steeri  Co.  (1915) 
-  N.  Y.  — ,  110  N.  E.  170. 

19a  Crockett  v.  State  Insurance  Fund 
(1915)  —  App.  Div.  — ,  155  N.  Y.  Supp.  692. 
The  court  said:  "It  is  true  that  the  em- 
ployer has  a  remote  interest  even  though 
insured  in  the  state  fund  to  the  end  that 
the  risk  which  he  claims  not  to  be  within 
the  act  may  be  so  decided  as  affecting  any 
subsequent  premium  which  he  must  pay. 
That  interest,  however,  is  too  remote  an 
interest  to  authorize  his  appeal  in  a  matter 
where  he  is  not  otherwise  agreed." 

20  The  power  of  review  by  the  court  ex- 
tends to  the  inquiry  whether  a  finding  of  a 
jurisdictional  fact  is  wholly  without  the 
support  of  any  substantial  evidence,  since 
such  inquiry  presents  a  question  of  law. 
Western  Indemnity  Co.  v.  Pillsbury  (1915) 
-  Cal.  — ,  151  Pac.  398. 

Certiorari  is  not  a  collateral  but  a  direct 
attack,  and  under  it  the  existence  of  the 
jurisdictional  facts  may  be  a  subject  of  in- 
quiry, and  to  this  end  the  evidence  itself 
may  in  proper  cases  be  brought  up  for  ex- 
amination. Great  Western  Power  Co.  v. 
Pillsbury  (1915)  —  Cal.  — ,  149  Pac.  35. 

The  expression  "without  or  in  excess  of 
its  powers"  is  the  equivalent  of  the  expres- 
sion "without  or  in  excess  of  its  jurisdic- 


270 


WORKMEN'S  COMPENSATION. 


so  unreasonable  as  to  justify  judicial 
interference.21  Under  the  California  and 
Wisconsin  statutes,  the  award  of  the 
Industrial  Board  or  Commission  may  be 
set  aside  "only  on  the  following  grounds : 
(1)  That  the  Board  acted  without  or  in 
excess  of  its  power;  (2)  that  the  award 
was  procured  by  fraud;  (3)  that  the 
findings  of  fact  by  the  Board  do  not 
support  the  award."  22 

By  the  California  statute,  no  appeal 
is  provided  to  be  taken  from  a  decision 
of  the  Commission,  but  a  proceeding  of 
review  may  be  taken  in  either  the  su- 
preme court  or  the  district  court  of  ap- 
peals, which  review  may  extend  far 
enough  to  determine  whether  the  find- 
ings of  fact,  when  such  are  made,  sup- 
port the  order,  decision,  or  award  under 
review.23 

The  constitutional  or  fundamental 
powers  of  the  appellate  court  to  review 
questions  of  law  cannot  be  limited  by 
provisions  contained  in  the  act.24  The 
jurisdiction  to  review  acts  of  the  Public 
Service  Commission  respecting  the  ad- 
ministration of  the  workmen's  compen- 


sation fund,  conferred  upon  the  supreme 
court  of  appeals  by  the  act  of  1910,  is 
original,  and  not  appellate,  since  the 
Commission  is  not  a  court,  and  such  jur- 
isdiction pertains  only  to  matters  pure- 
ly judicial,  and  not  to  matters  adminis- 
trative or  executive.26 

An  action  under  the  workmen's  com- 
j  pensation  act  which  involves  merely  the 
question  whether  or  not  the  injury  is 
within  the  terms  of  the  act  should  not 
be  submitted  to  the  jury,  but  error  in 
so  submitting  it  does  not  require  a  re- 
versal if  the  jury  reach  the  correct  con- 
clusion.26 

Under  the  Massachusetts  act  a  suit 
must  be  brought  to  the  supreme  court 
by  appeal  from  the  decree  of  the  supe- 
rior court,  and  not  by  exception.27  Under 
the  New  York  act,  in  order  to  bring  an 
order  of  the  Commission  before  the  court 
for  review,  it  is  not  necessary  to  file  ex- 
ceptions; the  appeal  should  bring  the 
whole  case  to  be  heard  on  the  record  of 
the  Commission  and  the  brief  and  argu- 
ment submitted  by  the  parties.28 

A  few  cases  involving  the  question  as 


tion,"  where  those  words  are  used  in  a  cer- 
tiorari  action  to  review  the  decision  of  the 
administrative  officer  or  body.  Milwaukee 
Western  Fuel  Co.  v.  Industrial  Commission 
(1915)  159  Wis.  635,  150  N.  W.  998. 

21  Kennerson    v.     Thames     Towboat     Co. 
(1915)  —  Conn.  — ,  post,  436,  94  Atl.  372. 

22  Great  Western  Power  Co.  v.  Pillsbury 
(Cal.)  supra;  Milwaukee  v.  Industrial  Com- 
mission (1915)  160  Wis.  238,  151  N.  W.  247. 

23  Smith   v.   Industrial   Acci.   Commission 
(1915)   26  Cal.  App.  560,  147  Pac.  601. 

2*  The  provision  in  the  California  act  of 
1911,  that  awards  or  orders  of  the  Indus- 
trial Accident  Board  might  be  reviewed  by 
a  proceeding  in  the  .nature  of  a  writ  of  cer- 
tiorari  in  the  sueprior  court,  the  determina- 
tion of  that  court  to  be  subject  to  an  ap- 
peal to  the  supreme  court,  does  not  take 
away  the  constitutional  right  of  the  su- 
preme court  to  issue  the  writ  of  certiorari 
as  an  exercise  of  original  jurisdiction. 
Great  Western  Power  Co.  v.  Pillsbury  (Cal.) 
supra. 

An  award  made  by  the  Industrial  Com- 
mission is  subject  to  review  and  annulment 
in  the  courts,  where  the  finding  on  any 
jurisdictional  fact  is  without  the  support  of 
substantial  evidence,  and  this  notwithstand- 
ing the  provision  of  the  act  that  the  find- 
ings of  the  Commission  on  questions  of  fact 
shall  be  conclusive  and  final.  Employers' 
Assur.  Corp.  v.  Industrial  Acci.  Commission 
(1915)  —  Cal.  — ,  151  Pac.  423. 

Since  the  legislature  has  no  power  to 
deprive  the  parties  to  a  proceeding  under  the 
compensation  act  of  having  a  court  review 
the  action  of  the  Board  to  the  extent  of  de- 
termining whether  it  had  acted  illegally  or 
without  jurisdiction,  and  since  the  provision 
L.R.A.1916A. 


which  attempted  to  give  the  supreme  court 
original  jurisdiction  in  -such  matters  was 
invalid  under  the  state  Constitution,  the 
circuit  court  has  jurisdiction  to  issue  the 
common  law  writ  of  certiorari  to  review 
the  decisions  of  the  Board  for  the  purpose 
of  determining  whether  it  has  jurisdiction, 
or  whether  it  has  exceeded  its  powers  and 
acted  illegally.  Courter  v.  Simpson  Constr. 
Co.  (1914)  264  111.  488,  106  N.  E.  350,  6 
N.  C.  C.  A.  548. 

Under  the  Washington  act  of  the  court 
is  not  prevented  from  determining  questions 
of  law  as  to  what  injuries  are  within  the 
operation  of  the  statute,  by  a  provision 
that  the  decision  of  the  Commission  shall  be 
prima  facie  correct,  or  by  the  principle  that 
the  rulings  of  the  Commission  upon  ques- 
tions of  policy,  involving  the  administration 
of  the  act,  shall  be  upheld.  Zappala  v.  In- 
dustrial Ins.  Commission  (1914)  82  Wash. 
314,  post,  295,  144  Pac.  54. 

25  De  Constantin  v.  Public  Service  Com- 
mission  (1914)  —  W.  Va.  — ,  post,  329,  83 
S.  E.  88;   Poccardi  v.  Public  Service  Com- 
mission (1915)  —  W.  Va.  — ,  post,  299,  84 
S.  E.  242. 

26  Zappala  v.  Industrial  Ins.  Commission 
(Wash.)   supra 

27  Gould's  Case  (1913)  215  Mass.  480,  102 
N.  E.  693,  Ann.  Gas.  1914D,  372,  4  N.  C.  C. 
A.  60;  McNicol's  Case  (1913)  215  Mass.  497, 
post,  306,  102  N.  E.  697,  4  N.  C.  C.  A.  522; 
Grippe's  Case   (1914)  216  Mass.  586,  104  N. 
E.  565,  Ann.  Cas.  1915B,  828;  Pigeon's  Case 
(1913)    216  Mass.  51,  102  N.  E.  932,  Ann. 
Cas.  1915A,  737,  4  N.  C.  C.  A.  516. 

28  Kenny  v.  Union  R.  Co.  (1915)  166  App. 
Div.  497,  152  N.  Y.  Supp.  117,  8  N.  C.  C.  A. 
986. 


PROCEDURE  IN  GENERAL. 


271 


to  the  time  within  which  the  appeal  must 
be  taken  are  set  out  below.29 

XLII.  Procedure  in  general. 

While  questions  of  local  practice  and 
procedure  are  not  within  the  scope  of 
annotation  of  this  character,  it  has  been 
deemed  best  to  include  the  points  set 
out  below  as  being  of  some  general  in- 
terest and  value. 

In  general,  it  may  be  said  that  tne 
statutes  have  attempted  to  provide  for 
a  procedure  that  is  simple,  flexible,  and 
speedy.30  Proceedings  under  the  Minne- 
sota act  are  governed  by  the  provisions 
contained  in  the  act  itself,  and  not  by 
the  general  provisions  of  law  relative 
to  civil  actions  generally,  and  hearings 
under  the  act  are  to  be  held  at  the  time 
and  place  fixed  by  the  judge,  regardless 
of  the  time  and  place  of  holding  the 
regular  terms  of  court.81  Although  a 
proceeding  under  the  workmen's  compen- 
sation act  is  not  an  equity  cause,  the 
practice,  broadly  speaking,  follows  that 
prevailing  in  equity,  and  not  that  in 


law.32  The  members  of  the  Industrial 
Accident  Board  are  not  judicial  officers 
within  the  meaning  of  the  Constitution.88 
And  it  has  been  held  that  the  Minnesota 
Commission  is  not  a  governmental  agency 
of  the  state.34 

A  father  may  institute  proceedings 
where  an  unmarried  son  has  been 
killed ; 36  and  where  an  employee  died 
intestate,  leaving  a  mother,  but  neither 
father,  brothers,  nor  sisters,  nor  widow, 
the  proceedings  for  compensation  are 
properly  set  on  foot  by  the  mother.86 

The  judgment  in  an  action  brought 
by  an  infant  by  his  next  friend,  to  re- 
cover compensation  as  an  employee  for 
injury  suffered  in  the  course  of  his  em- 
ployment, binds  the  plaintiff  to  the  ex- 
tent of  the  questions  involved  as  effect- 
ively as  an  action  for  damages  generally, 
without  reliance  upon  the  compensatory 
features  of  the  statute.87 

Various  other  holdings  upon  matters 
of  procedure  are  set  out  in  the  note  be- 
low.38 


29  It  is  a  compliance  with  the  provisions 
of  the  Massachusetts   statute  that   an  ap- 
peal from  a  decree  based  upon  an  order  or 
decision   of   the   Industrial   Accident   Board 
must  be  presented  to  the  court  within  ten 
days  after  the  notice  of  the  filing  thereof  by 
the  Board;   if  the  required  papers  are  pre- 
sented  to  the  court  in  the  sense  of  being 
filed  as  a  part  of  its  record,  the  case  need 
not   be   actually   brought   to   the   attention 
of  a  justice  of  the  superior  court  within  that 
time.     Re  McPhee   (1915)   —  Mass.  — ,  109 
N.  E.  633. 

Under  the  amendment  of  1913,  the  peti- 
tion must  be  actually  filed  with  the  clerk 
within  one  year  after  the  accident,  and  it 
is  not  enough  to  present  it  to  the  judge. 
Hendrickson  v.  Public  Service  R.  Co.  (1915) 
-  N.  J.  L.  — ,  94  Atl.  402. 

30  The   plaintiff,   upon   an   appeal   by   the 
defendant  from  a  judgment  rendered  against 
him  under  the  workmen's  compensation  act, 
made  by  a  motion  to  dismiss,  raised  a  ques- 
tion whether  the  questions  of  law  involved 
are  so  doubtful  as  to  require  the  filing  of 
briefs;    and   if   upon   the   resulting  hearing 
the  court  is  fully  satisfied  that  no  ground 
for  a  reversal  exists,  an  affirmance  will  be 
ordered.     Cain  v.  National  Zinc  Co.   (1915) 
94  Kan.  679,  146  Pac.  1165. 

A  procedure  under  the  compensation  act 
should  be  flexible  and  adapted  to  the  direct 
accomplishment  of  the  aim  of  the  act  with 
as  little  formality  or  hampering  restriction 
as  is  consistent  with  the  preservation  of  the 
real  rights  of  the  parties  and  the  doing  of 
justice  according  to  the  terms  of  the  act. 
Hunnewell's  Case  (1915)  220  Mass.  351, 
107  N.  E.  934. 

31  State  ex  rel.  Duluth  Diamond  Drilling 
Co.  v.  District  Ct.  (1915)  129  Minn.  423,  152 
N.  W.  838. 

L.R.A.1916A. 


32  Pigeon's  Case  (1913)  216  Mass.  51,  102 
N.  E.  932,  Ann.  Cas.  1915A,  737,  4  N.  C.  C. 
A.  516;  Gould's  Case  (1913)  215  Mass.  480, 
102  N.  E.  693,  Ann.  Cas.  1914D,  372,  4  N. 
C.  C.  A.  60. 

33  Pigeon's  Case  (Mass.)  supra. 

The  Industrial  Accident  Board  is  not  a 
judicial  body,  since  its  determinations  and 
awards  are  not  enforceable  by  execution  or 
other  process  until  a  binding  judgment  is 
entered  thereon  in  a  regularly  constituted 
court.  Mackin  v.  Detroit-Timkin  Axle  Co. 
(1915)  —  Mich.  — ,  153  N.  W.  49. 

34  The   Minnesota   Employee's   Compensa- 
tion   Commission,    created    by    Laws    1909, 
chapter  286,  was  not  a  governmental  agency 
of  the  state,  nor  were  its  members  public 
officers    so    that    they    were    relieved    from 
personal    liability    for   debts    contracted    in 
the   name   of   the   Commission,   beyond   the 
amount  of  its  appropriation,  with  a  credi- 
tor having  no  knowledge  of  the  deficiency. 
Wilkinson  v.  Mercer   (1914)   125  Minn.  201, 
146  N.  W.  362. 

35Reimers  v.  Proctor  Pub.  Co.  (1914)  85 
N.  J.  L.  441,  89  Atl.  931,  4  N.  C.  C.  A.  738. 

36McFarland  v.  Central  R.  Co.  (1913)  84 
N.  J.  L.  435,  87  Atl.  144,  4  N.  C.  C.  A.  592. 

37  Hoey   v.   Superior  Laundry  Co.    (1913) 
85  N.  J.  L.  119,  88  Atl.  823. 

38  Upon  an  appeal  from  a  commissioner's 
award  the   ordinary   record   fees   are   to  be 
paid  by  the  appellant  who  takes  the  case 
to  court.    Bayon  v.  Beckley  (1915)  —  Conn. 
— ,  93  Atl.  139. 

A  verdict  of  the  jury  is  sufficient  to  sus- 
tain a  judgment  for  compensation  where 
the  verdict  reads  that  the  jury  finds  the  is- 
sues in  favor  of  the  petitioner,  and  that  he 
is  entitled  to  recover  compensation,  although 
the  jury  does  not  find  the  amount  of  com- 
pensation, and  from  whom  he  is  entitled  to 


272 


WORKMEN'S  COMPENSATION. 


recover,  where  the  evidence  shows  without 
contradiction  that  the  deceased  left  a  widow 
and  minor  child  and  his  average  weekly 
earning  had  been  stipulated,  and  it  was  fur- 
ther stipulated  that  he  had  contributed  to 
the  support  of  his  wife  and  children  within 
five  years  preceding  his  death.  Dragovich 
v.  Iroquois  Iron  Co.  (1915)  —  111.  — ,  109 
N.  E.  999. 

The  court  must  exercise  its  own  judgment 
as  to  the  kind  of  decree  to  be  entered  under 
the  Massachusetts  act.  McNicol's  Case 
(1913)  215  Mass.  497,  post,  306,  102  N.  E. 
697,  4  N.  C.  C.  A.  522. 

Under  the  Massachusetts  statute,  part  3, 
§  11,  augmented  by  statute  1912,  chap.  571, 
§  14,  it  is  not  improper  that  a  petition  be 
filed  with  the  copies  of  the  designated  pro- 
ceedings of  the  Industrial  Accident  Board, 
which  petition  sets  forth  briefly  the  nature 
of  the  question  to  be  decided.  Gould's  Case 
(1913)  215  Mass.  480,  102  N.  E.  693,  Ann. 
Cas.  1914D,  372,  4  N.  C.  C.  A.  60. 

Where  there  is  a  conflict  between  the 
findings  of  the  committee  of  arbitration  and 
the  Industrial  Insurance  Board,  the  findings 
of  the  Board  control,  and  those  of  the  com- 
mittee in  conflict  therewith  are  overruled. 
Septimo's  Case  (1914)  219  Mass.  430,  107 
N.  E.  63,  7  N.  C.  C.  A.  906. 

The  obligation  placed  upon  the  superior 
court  by  the  requirement  of  the  Massa- 
chusetts act  to  enter  a  decree  in  accordance 
with  the  decision  is  to  exercise  its  judicial 
function  by  entering  such  decree  as  will  en- 
force the  legal  right  of  the  parties  as  dis- 
closed by  the  facts  appearing  on  the  record; 
the  action  of  the  superior  court  is  not  a 
mere  perfunctory  registration  of  approval 
of  the  conclusions  of  law  reached  by  the  In- 
dustrial Accident  Board.  McNicol's  Case 
(Mass.)  supra. 

Where  the  employer  and  the  employees 
stipulated  the  facts,  and  that  the  proceed- 
ing may  be  heard  directly  by  the  Industrial 
Accident  Board,  and  on  appearing  before 
the  Board,  the  claimant  and  her  counsel 
proceeded  upon  the  theory  that  a  hearing 
before  such  Board  should  be  had,  and  it 
was  not  then  urged  that  the  parties  were 
bound  by  the  stipulation,  the  court  will 
not  reverse  the  finding  of  the  Industrial 
Accident  Board,  upon  the  theory  that  no 
hearing  should  have  been  held.  Vereeke  v. 
Grand  Rapids  (1915)  —  Mich.  — ,  151  N.  W. 
723. 

Attorneys  for  an  employee  injured  in 
Kansas  cannot  enforce  an  attorneys'  lien 
against  the  employers  by  virtue  of  a  Mis- 
souri contract  entered  into  between  them 
and  the  employee  whereby  they  were  to 
prosecute  a  suit  for  damages,  and  were  to 
receive  50  per  cent  of  the  amount  realized 
L.R.A.1916A. 


whether  collected  by  suit,  settlement,  or 
otherwise,  where  three  days  prior  to  such 
contract,  the  employee  received  from  his 
employer  the  sum  of  $10  and  signed  a  re- 
ceipt for  compensation  under  the  Kansas 
workmen's  compensation  act,  and  subse- 
quently received  other  weekly  payments, 
and  finally  accepted  a  lump  sum  in  full 
satisfaction  and  discharge  of  all  claims  ac- 
crued or  to  accrue  in  respect  to  hte  injury. 
Piatt  v.  Swift  &  Co.  (1915)  188  Mo.  App. 
584,  176  S.  W.  434. 

The  small  cause  court  is  without  juris- 
diction to  determine  the  liability  of  a  cor- 
poration upon  an  agreement  executed  by  one 
of  its  injured  employees  under  an  agreement 
of  settlement  based  upon  the  provision  of 
the  employers'  liability  act.  Parro  v.  New 
York,  S.  &  W.  R.  Co.  (1913)  85  N.  J.  L. 
155,  88  Atl.  825,  4  N.  C.  C.  A.  680. 

The  claim  that  the  employee  refused  to 
submit  to  a  medical  examination  at  the 
trial  is  not  substantiated  where,  although, 
before  the  arrival  of  the  employer's  physi- 
cian, the  employee's  counsel  announced  that 
they  would  not  consent  to  an  examination, 
no  demand  was  made  after  the  physician's 
arrival,  and  the  anticipatory  refusal  did  not 
lead  the  employer  to  countermand  the  call 
to  the  physician  to  attend  the  trial,  and  be 
sworn  as  a  witness.  Birmingham  v.  Lehigh 
&  W.  Coal  Co.  (1915)  —  N.  J.  L.  — ,  95  Atl. 
242. 

Under  art.  4,  §  1,  of  the  Oregon  Consti- 
tution, providing  that  any  measure  referred 
to  the  people  shall  take  effect  and  become 
the  law  when  it  is  approved  by  the  ma- 
jority of  the  votes  passed  thereon,  and  not 
otherwise,  and  under  chap.  112  of  the  Laws 
of  1913,  commonly  known  as  the  "work- 
men's compensation  act,"  providing  that 
workmen  should  have  the  benefit  of  the 
act  "after  June  30th  next  following  the 
taking  effect  of  this  act,"  the  Secretary  of 
State,  as  the  public  auditor,  was  justified 
in  refusing  to  audit  or  draw  his  warrant 
on  the  treasurer  in  payment  of  a  claim  for 
hospital  accommodation  to  workmen  fur- 
nished in  accordance  with  the  terms  of  the 
act,  during  December,  1913,  where  the  com- 
pensation act  was  approved  at  the  election 
held  throughout  the  state  on  November  4th, 
1913,  the  court  holding  that  under  the  plain 
provisions  of  the  Constitution  and  the  act 
the  latter  would  not  take  effect  until  after 
June  30th,  1914.  Salem  Hospital  v.  Olcott 
(1913)  67  Or.  448,  136  Pac.  341,  4  N.  C.  C. 
A.  614. 

Where  an  order  for  a  jury  trial  was  made 
at  a  preliminary  hearing,  such  order  may  be 
overruled  at  a  final  hearing.  Sinnes  v.  Dag- 
gett  (1914)  80  Wash.  673,  142  Pac.  5. 

W.  M,  G. 


VENNEN  v.  NEW  DELLS  LUMBER  CO. 


273 


WISCONSIN  SUPREME  COURT. 

FRIEDA   VENNEN,   Aclmrx.,   etc.,   of   Ger- 
hard Vennen,  Deceased,  Appt., 

v. 

NE\V  DELLS  LUMBER  COMPANY, 
Respt. 

(_  Wis.  — ,  154  N.  W.  640.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  liability  for  typhoid 
fever. 

1 .  Typhoid    fever    contracted    by    an    em- 
ployee   through    the    negligent    contamina- 
tion   of    drinking    water    furnished    by    the 
employer   is  within  an  act  providing   com- 
pensation for  injury  accidentally  sustained 
by   an    employee   while    performing    service 
growing  out  of  an  incident  to  his  employ- 
ment. 

For  other  cases,  see  Master  and  Servant,  II, 
a,  1,  in  Dig.  1-52  N.  8. 

Same  —  negligent  injury  —  applicabil- 
ity of  statute. 

2.  Injuries  caused  by  the  employer's  neg- 
ligence are  within  the  operation  of  a  stat- 
ute providing  compensation  for  injuries  ac- 
cidentally sustained  by  an  employee  while 
performing  service  growing  out  of  and  inci- 
dental to  his  employment. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  J,  in  Dig.  1-52  N.-8. 

(Barnes,  J.,  dissents.) 
(October  26,  1915.) 

APPEAL  by  plaintiff  from  an  order  of 
the  Circuit  Court  for  Eau  Claire  Coun- 
ty overruling  a  demurrer  to  the  defense  in 
an  action  brought  to  recover  under  the 
workmen's  compensation  act  for  the  death 
of  plaintiff's  husband,  alleged  to  have  been 
caused  by  defendant's  negligence.  Affirmed. 

Statement  by  Siebecker,  J. : 

This  is  an  action  to  recover  damages  al- 
leged to  have  been  sustained  by  the  plain- 
tiff as  administratrix  of  her  husband's  es- 
tate and  as  his  widow  on  account  of  her 
husband's  death. 

The  defendant  is  a  corporation  organized 
under  the  laws  of  the  state  of  Wisconsin. 
The  deceased,  Gerhard  Vennen,  was  em- 
ployed by  the  defendant  during  the  spring 
and  early  summer  of  the  year  1914.  The 
defendant  was  engaged  in  operating  a  manu- 
facturing lumber  establishment  located  on 
the  Chippewa  river,  in  the  city  of  Eau 


Note.  —  As  to  the  construction  and  ap- 
plication of  the  workmen's  compensation 
act  generally,  see  annotation,  ante,  23. 

As  to  whether  compensation  is  recover- 
able for  incapacity  caused  by  a  disease  con- 
tracted while  the  workman  is  acting  within 
the  scope  of  his  employment,  see  annota- 
tion, post.  289. 
L.R.A.1916A.  18 


Claire,  Wisconsin.  In  connection  with  its 
establishment  the  defendant  maintained  an 
outhouse  and  two  toilets  for  its  employees 
working  there,  and  a  toilet  in  its  principal 
oflice  building.  All  of  the  sewage  from 
these  toilets  was  discharged  into  the  river 
near  defendant's  establishment.  The  plead- 
ings allege  that  the  defendant,  in  supplying 
water  for  its  boilers,  not  only  secured  water 
from  the  city  waterworks,  but  also  used 
water  from  the  river,  which  was  obtained 
by  means  of  intake  pipes;  that  the  defend- 
ant was  negligent  in  placing  its  intake  pipes 
in  such  location  that  they  carried  into  the 
boilers  water  that  was  contaminated  by  the 
sewage;  and  that  this  water,  through  de- 
fendant's negligence,  became  mixed  with 
the  water  from  the  city  waterworks,  because 
of  improper  connecting  pipes.  It  is  further 
alleged  that  the  defendant  negligently  per- 
mitted and  caused  the  employees  to  drink  of 
this  polluted  water,  and  thereby  caused  the 
deceased,  Gerhard  Vennen,  to  become  sick 
with  typhoid  fever,  which  resulted  in  his 
death  on  July  25,  1914. 

The  defendant  alleges  and  claims  that  the 
court  had  no  jurisdiction  of  the  matter, 
because  the  defendant  at  the  time  here  in 
question  had  more  than  four  employees  en- 
gaged in  a  common  employment,  and  that  it 
had  filed  notice  of  election  to  accept  the 
provisions  of  the  workmen's  compensation 
act,  and  that  the  plaintiff's  intestate  had 
never  filed  any  election  not  to  accept  the 
provisions  thereof.  Plaintiff  demurred  to 
this  defense  on  the  ground  that  it  did  not 
state  facts  sufficient  to  constitute  a  de- 
fense. 

The  circuit  court  ordered  that  the  demur- 
rer be  overruled.  From  such  order,  this 
appeal  is  taken. 

Messrs.  Fred  Arnold  and  Daniel  H. 
Grady  for  appellant: 

The  typhoid  illness  of  the  intestate  was 
not  an  accidental  injury  within  the  meaning 
of  the  compensation  act. 

Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl. 
458,  3  N.  C.  C.  A.  585;  McNicol's  Case,  215 
Mass.  497,  post,  306,  102  N.  E.  697,  4  N. 
C.  C.  A.  522;  Craske  v.  Wigan  [1909]  2  K. 
B.  635,  78  L.  J.  K.  B.  N.  S.  994,  101  L.  T. 
N.  S.  6,  25  Times  L.  R.  632,  53  Sol.  Jo. 
560,  2  B.  W.  C.  C.  35 ;  Hoenig  v.  Industrial 
Commission,  159  Wis.  646,  post,  339,  150  N. 
W.  996,  8  N.  C.  C.  A.  192;  Steel  v.  Cam- 
mell,  L.  &  Co.  [1905]  2  K.  B.  232,  74  L. 
J.  K.  B.  N.  S.  610,  53  Week.  Rep.  612,  93 
L.  T.  N.  S.  357,  21  Times  L.  R.  490,  2  Ann. 
Cas.  142;  Adams  v.  Acme  White  Lead  & 
Color  Works,  182  Mich.  157,  post,  283,  148 
N.  W.  485,  6  N.  C.  C.  A.  482;  Bacon  v. 
United  States  Mut.  Acci.  Asso.  (Stedman 
v.  United  States  Mut.  Acci.  Asso.)  123  N. 


274 


WORKMEN'S  COMPENSATION. 


Y.  304,  20  Am.  St.  Rep.  748,  9  L.R.A.  617, 
20  Am.  St.  Rep.  748,  25  N.  E.  399;  Smith 
v.  Travelers'  Ins.  Co.  219  Mass.  147,  L.R.A. 
1915B,  872,  106  N.  E.  607;  Ludwig  v.  Pre- 
ferred Acci.  Ins.  Co.  113  Minn.  510,  130 
N.  W.  5;  Sherwood  v.  Johnson,  5  B.  W.  C. 
C.  686;  Broderick  v.  London  County  Coun- 
cil [1908]  2  K.  B.  807,  77  L.  J.  K.  B.  N. 
S.  1127,  99  L.  T.  N.  S.  569,  24  Times  L.  R. 
822,  IS  Ann.  Cas.  885;  Fenton  v.  J.  Thor- 
ley  &  Co.  [1903]  A.  C.  443,  72  L.  J.  K.  B. 
N.  S.  787,  52  Week.  Rep.  81,  89  L.  T.  N. 
S.  314,  19  Times  L.  R.  684,  5  W.  C.  C.  1; 
Brintons  v.  Turvey  [1905]  A.  C.  230,  74  L. 
J.  K.  B.  N.  S.  474,  53  Week.  Rep.  641,  21 
Times  L.  R.  444,  92  L.  T.  N.  S.  578,  6  Ann. 
Cas.  137;  Marshall  v.  East  Holywell  Coal 
Co.  93  L.  T.  N.  S.  360,  21  Times  L.  R.  494; 
Hichens  v.  Magnus  Metal  Co.  35  N.  J.  L. 
J.  327;  Re  Sheeran,  28  Ops.  Atty.  Gen.  254. 

Typhoid  infection  does  not  arise  out  of 
and  is  not  peculiar  to  the  discharge  of  the 
duties  which  the  intestate  was  to  perform. 

Hoenig  v.  Industrial  Commission,  159 
Wis.  646,  post,  339,  150  N.  W.  996,  8  N.  C. 
C.  A.  192;  Amys  v.  Barton  [1912]  1  K.  B. 
40,  [1911]  W.  N.  205,  81  L.  T.  J.  N.  S. 
6"5,  105  L.  T.  N.  S.  619,  28  Times  L.  R.  29; 
McNicol's  Case,  215  Mass.  497,  post,  306, 
102  N.  E.  697,  4  N.  C.  C.  A.  522:  Byrant 
v.  Fissell,  84  N.  J.  L.  72,  86  Atl.  458,  3 
N.  C.  C.  A.  585;  Craske  v.  Wigan  [1909] 
2  K.  B.  635,  78  L.  J.  K.  B.  N.  S.  994,  101 
L.  T.  N.  S.  6,  25  Times  L.  R.  632,  53  Sol. 
Jo.  560,  2  B.  W.  C.  C.  35. 

There  is  nothing  in  the  act  itself  to  indi- 
cate that  the  intent  or  purpose  of  this  en- 
actment was  to  provide  compensation  in  all 
cases  where  an  action  might  otherwise  be 
maintained  for  the  recovery  of  damages. 

Steel  v.  Cammell,  L.  &  Co.  [1905]  2  K. 
B.  232,  74  L.  J.  K.  B.  N.  S.  610,  53  Week. 
Rep.  612,  93  L.  T.  N.  S.  357,  21  Times  L. 
R.  490,  2  Ann.  Cas.  142;  Adams  v.  Acme 
White  Lead  &  Color  Works,  182  Mich.  157, 
post,  283,  148  N.  W.  485,  6  N.  C.  C.  A.  482 ; 
Broderick  v.  London  County  Council  [1908] 
2  K.  B.  807,  77  L.  J.  K.  B.  N.  S.  1127,  99 
L.  T.  N.  S.  569,  24  Times  L.  R.  822,  15  Ann. 
Cas.  885;  Fenton  v.  J.  Thorley  &  Co.  [1903] 
A.  C.  443,  72  L.  J.  K.  B.  N.  S.  787,  52 
Week.  Rep.  81,  89  L.  T.  N.  S.  314,  19  Times 
L.  R.  684,  5  W.  C.  C.  1. 

Messrs.  Sturdevant  &  Farr,  for  respond- 
ent: 

Where  the  conditions  of  compensation  ex- 
ist for  any  personal  injury  or  death,  the 
right  of  recovery  of  such  compensation  pur- 
suant to  the  provisions  of  the  act  is  ex- 
clusive. . 

Milwaukee  v.  Althoff,  156  Wis.   68,  post, 
327,  145  N.  W.  238,  4  N.  C.  C.  A.  110;  Smale 
v.  Wrought  Washer  Mfg.  Co.  160  Wis.  331, 
151  N.  W.  803. 
L.R.A.1916A. 


The  workmen's  compensation  act  should 
be  construed  liberally  in  favor  of  its  pur- 
poses, and  not  strictly  as  a  statute  in  dero- 
gation of  the  common  law. 

Sadowski  v.  Thomas  Furnace  Co.  157  Wis. 
443,  146  N.  W.  770;  Northwestern  Iron  Co. 
v.  Industrial  Commission,  154  Wis.  97,  post, 
366,  142  N.  W.  271,  Ann.  Cas.  1915B,  877. 

The  contracting  of  disease  is  a  personal 
injury. 

State  ex  rel.  McMamis  v.  Policemen's  Pen- 
sion Fund,  138  Wis.  133,  20  L.R.A.(N.S.) 
1175,  119  N.  W.  806. 

An  accident  covers  all  injuries  accidental- 
ly sustained  caused  by  negligence,  as  well 
as  those  occurring  without  the  fault  of  any 
human  agency. 

Milwaukee  v.  Industrial  Commission,  160 
Wis.  238,  151  N.  W.  247;  Ullman  v.  Chi- 
cago &  N.  W.  R.  Co.  112  Wis.  150,  56  L.R.A. 
246,  88  Am.  St.  Rep.  949,  88  N.  W.  41. 

The  workmen's  compensation  act  applies 
to  injuries  caused  by  disease,  if  the  disease 
was  the  result  of  an  accidental  injury. 

Voelz  v.  Industrial  Commission,  —  Wis. 

— ,  152  N.  W.  830;   Heileman  Brewing  Co. 

v.    Schultz,   --   Wis.   — ,    152    N.    W.    446; 

Klawinski  v.  Lake   Shore  &  M.  S.  R.   Co. 

-  Mich.  — ,  post,  342,  152  N.  W.  213. 

A  person  walks,  runs,  eats,  and  drinks 
voluntarily,  and  yet  he  may  sustain  an  ac- 
cidental injury  in  doing  either  of  such  acts. 

United  States  Mut.  Acci.  Asso.  v.  Barry, 
131  U.  S.  100,  33  L.  ed.  60,  9  Sup.  Ct.  Rep. 
755;  H.  P.  Hood  &  Sons  v.  Maryland 
Casualty  Co.  206  Mass.  223,  30  L.R.A. 
(N.S.)  1192,  138  Am.  St.  Rep.  379,  92  N. 
E.  329;  Higgins.  v.  Campbell  [1904]  1  K. 
B.  328,  73  L.  J.  K.  B.  N.  S.  158,  68  J.  P. 
193,  52  Week.  Rep.  195,  89  L.  T.  N.  S.  660, 
20  Times  L.  R.  129;  Ismay  v.  Williamson 
[1908]  A.  C.  437,  77  L.  J.  P.  C.  N.  S.  107, 
99  L.  T.  N.  S.  595,  24  Times  L.  R.  881,  52 
Sol.  Jo.  713. 


Siebecker,  J.,  delivered  the  opinion  of 
the  court: 

This  appeal  presents  an  important  ques- 
tion as  to  the  liability  and  nonliability  of 
employers  under  the  provisions  of  the 
workmen's  compensation  act.  The  ruling 
upon  the  demurrer  to  the  answer  assumes 
that  the  facts  stated  in  the  pleading  exist 
as  alleged,  regardless  of  evidence  in  re- 
spect thereto.  Section  2394 — 3,  subd.  3, 
provides  that,  where  the  right  to  compen- 
sation under  the  provisions  of  the  work- 
men's compensation  act  exists  for  personal 
injury  or  death,  it  shall  be  the  exclusive 
remedy  against  the  employer  for  such  in- 
jury or  death.  Milwaukee  v.  Althoff,  156 
Wis.  68,  post,  327,  145  N.  W.  238,  4  N.  C. 
C.  A.  110;  Smale  v.  Wrought  Washer  Mfg. 


VENNEN  v.  NP]W  DELLS  LUMBER  CO. 


275 


Co.  160  Wis.  331,  151  N.  W.  803.  By  § 
2394—3  it  is  enacted: 

"Liability  for  the  compensation  herein- 
after provided  for,  in  lieu  of  any  other  lia- 
bility whatsoever,  shall  exist  against  an  em- 
ployer for  any  personal  injury  accidentally 
sustained  by  his  employee,  and  for  his 
death,  ...  in  those  cases  where  the 
following  conditions  of  compensation  con- 
cur: .  .  . 

"(2)  Where  .  .  .  the  employee  is 
performing  service  growing  out  of  and  in- 
cidental to  his  employment.  '.  .  . 

"  ( 3 )  Where  the  injury  is  proximately 
caused  by  accident,  and  is  not  .  .  .in- 
tentionally self-inflicted." 

The  facts  alleged  show  that  the  parties 
to  the  action  were  subject  to  the  compensa- 
tion act.  The  inquiry  then  is:  Was  Ven- 
nen's  death  proximately  caused  by  accident 
while  he  was  "performing  services  growing 
out  of  and  incidental  to  his  employment?" 
The  inference  from  the  alleged  facts  is  rea- 
sonably clear  that  Vennen  at  the  time  of 
the  alleged  injury  resulting  in  his  death  was 
''performing  services  growing  out  of  and  in- 
cidental to  his  employment." 

The  contention  that  an  injury  resulting 
from  carelessness  or  negligence  is  not  one 
that  can  be  said  to  have  been  accidentally 
sustained  in  the  sense  of  the  compensation 
act  is  not  well  founded.  As  declared  in 
Northwestern  Iron  Co.  v.  Industrial  Com- 
mission, 154  Wis.  97,  post,  366,  142  N.  W. 
271,  Ann.  Cas.  1915B,  877:  "In  giving  con- 
struction to  such  statutes  words  are  to  be 
taken  and  construed  in  the  sense  in  which 
they  are  understood  in  common  language, 
taking  into  consideration  the  text  and  sub- 
ject-matter relative  to  which  they  are  em- 
ployed." 

The  words  should  be  given,  as  intended 
by  the  lawmakers,  their  popular  meaning. 
Sadowski  v.  Thomas  Furnace  Co.  157  Wis. 
443,  146  N.  W.  770. 

"A  very  large  proportion  of  those  events 
which  are  universally  called  accidents  hap- 
pen through  some  carelessness  of  the  party 
injured  which  contributes  to  produce  them. 
.  .  .  Yet  such  injuries,  having  been  un- 
expected, and  not  caused  intentionally  or 
by  design,  are  always  called  accidents,  and 
properly  so." 

Accidents  without  negligence  are  rare  as 
compared  to  accidents  resulting  from  neg- 
ligence. Opinion  of  Paine,  J.,  in  Schneider 
v.  Provident  L.  Ins.  Co.  24  Wis.  28,  1  Am. 
Rep.  157,  7  Am.  Neg.  Cas.  174.  The  inten- 
tion of  the  legislature  to  include  accidental 
injuries  resulting  from  negligence  within 
the  language  of  the  compensation  act  is  so 
manifest  that  there  is  no  room  to  indulge 
in  construction  of  the  language  employed. 
In  the  popular  sense  the  words  as  used  in 
L.R.A.1916A. 


the  compensation  act,  referring  to  a  per- 
sonal injury  accidentally  sustained  by  an 
employee  while  performing  services  grow- 
ing out  of  and  incidental  to  his  employ- 
ment, include  all  accidental  injuries,  whether 
happening  through  negligence  or  other- 
wise, except  those  intentionally  self-in- 
flicted. 

The  inquiry  is:  Was  the  disease  from 
which  it  is  alleged  Vennen  died  proximate- 
ly caused  by  accident?  Do  the  facts  and 
circumstances  alleged  in  the  case  set  forth 
the  conditions  to  entitle  an  employee  to 
compensation  "for  any  personal  injury  ac- 
cidentally sustained,"  which  was  "proxi- 
mately caused  by  accident"  while  "perform- 
ing services  growing  out  of  and  incidental 
to  his  employment?"  We  have  already  no- 
ticed that  the  alleged  injury  was,  under  the 
facts  stated  in  the  pleadings,  received  by 
deceased  while  in  plaintiff's  employ,  and 
while  he  was  "performing  services  growing 
out  of  and  incidental  to  his  employment." 
Whether  or  not  the  alleged  accidental  in- 
jury caused  Vennen's  death  is  sufficiently 
pleaded,  and  remains  a  question  for  deter- 
mination from  the  evidence  at  the  inquest 
of  the  case.  There  remains  the  important 
inquiry:  Do  the  allegations  state  a  case 
showing  that  Vennen's  death  is  attributable 
to  "accident"  in  the  sense  of  the  compensa- 
tion act?  It  is  urged  that  the  contracting 
of  typhoid  disease  under  the  facts  and  cir- 
cumstances stated  does  not  show  that  his 
death  was  due  to  an  accidental  occurrence. 
The  term  "accidental,"  as  used  in  compen- 
sation laws,  denotes  something  unusual,  un- 
expected, and  undesigned.  The  nature  of  it 
implies  that  there  was  an  external  act  or 
occurrence  which  caused  the  personal 
injury  or  death  of  the  employee.  It  con- 
templates an  event  not  within  one's  fore- 
sight and  expectation,  resulting  in  a  mis- 
hap causing  injury  to  the  employee.  Such 
an  occurrence  may  be  due  to  purely  acci- 
dental causes,  or  it  may  be  due  to  over- 
sight and  negligence.  The  fact  that  de- 
ceased became  afflicted  with  typhoid  fever 
while  in  defendant's  service  would  not  in 
the  sense  of  the  statute  constitute  a  charge 
that  he  sustained  an  accidental  injury,  but 
the  allegations  go  further  and  state  that 
this  typhoid  affliction  is  attributable  to  the 
undesigned  and  unexpected  occurrence  of 
the  presence  of  bacteria  in  the  drinking 
water  furnished  him  by  the  defendant,  as 
an  incident  to  his  employment.  These  facts 
and  circumstances  clearly  charge  that  Ven- 
nen's sickness  was  the  result  of  an  unin- 
tended and  unexpected  mishap  incident  to 
his  employment.  These  allegations  fulfil 
the  requirements  of  the  statute  that  the 
drinking  of  the  polluted  water  by  the  de- 
ceased was  an  accidental  occurrence,  while 


276 


WORKMEN'S  COMPENSATION. 


he  was  "performing  services  growing  out  of 
and  incidental  to  his  employment."  It  is 
alleged  that  the  consequences  of  this  alleged 
accident  resulted  in  afflicting  Vennen  with 
typhoid  disease,  which  caused  his  death. 
Diseases  caused  by  accident  to  employees 
while  "performing  services  growing  out  of 
and  incidental  to  his  employment"  are  in- 
juries within  the  contemplation  of  the  work- 
men's compensation  act.  This  was  recog- 
nized in  the  case  of  Heileman  Brewing  Co. 
v.  Schultz,  —  Wis.  — ,  152  N.  W.  446,  and 
Voelz  v.  Industrial  Commission,  —  Wis.  — , 
152  N.  W.  830.  The  English  compensation 
act  made  employers  liable  to  employees  for 
"personal  injury  by  accident  arising  out  of 
and  in  the  course  of  the  employment."  Un- 
der this  act  it  has  been  held  that  contrac- 
tion of  a  disease  may  be  caused  by  accident. 
See  the  following  cases:  Brintons  v.  Tur- 
vey  [1905]  A.  C.  230,  74  L.  J.  K.  B.  N.  S. 
474,  53  Week.  Rep.  643,  92  L.  T.  N.  S. 
578,  21  Times  L.  R.  444,  2  Ann.  Cas.  137. 
A  workman  became  infected  through  a 
bacillus  from  the  wool  which  he  was  assort- 
ing, resulting  in  giving  him  the  disease  of 
anthrax,  of  which  he  died,  and  it  was  held 
that  it  was  a  case  of  "injury  by  accident." 
Alloa  Coal  Co.  v.  Drylie  [1913]  S.  C.  549, 
50  Scot.  L.  R.  350,  6  B.  W.  C.  C.  398,  1 
Scot.  L.  T.  167,  4  N.  C.  C.  A.  899.  Drylie, 
a  workman  in  a  coal  pit,  through  accident, 
was  exposed  to  icy  cold  water  up  to  his 
knees  and  became  chilled,  which  made  him 
sick,  resulting  in  pneumonia,  of  which  he 
died.  Upon  the  evidence  adduced  the  court 
found  that  the  pneumonia  was  caused  by 
the  chill,  and  that  death  resulted  from  "in- 
jury by  accident."  The  cases  wherein  lia- 
bility has  been  found  distinguished  between 
disease  resulting  from  accidental  injury  and 
disease  which  results  from  an  idiopathic 
condition  of  the  system,  and  not  attributa- 
ble to  some  accidental  agency  growing  out 
of  the  employment.  The  latter  class  of 
diseases  are  held  not  to  be  within  the 
contemplation  of  the  act.  We  are  of  the  opin- 
ion that  the  decision  of  the  trial  court  hold- 
ing that  the  facts  pleaded  show  that  Ven- 
nen's  death  was  caused  by  accident  while 
performing  service  growing  out  of  and  inci- 
dental to  his  employment  is  correct,  and 
that  the  demurrer  was  properly  overruled. 
The  order  appealed  from  is  affirmed. 

Barnes,  J.,  dissenting: 

By  §  2394—3  liability  exists  under  the 
compensation  act  where  employer  and  em- 
ployee are  under  it:  (1)  For  "any  person- 
al injury  accidentally  sustained"  by  the 
employee  while  "performing  service  growing 
out  of  and  incidental  to  his  employment, 
.  .  .  where  the  injury  is  proximately 
caused  by  accident,  and  is  not  .  .  .  in- 
L.R.A.1936A. 


tentionally  self-inflicted;"  and  (2)  for 
death  where  the  employee  is  performing 
such  service,  and  where  the  injury  causing 
death  is  "proximately  caused  by  accident," 
and  not  intentionally  self-inflicted.  To  jus- 
tify recovery  under  this  statute,  where 
death  does  not  ensue,  there  must  be  a  per- 
sonal injury  actually  sustained,  which  in- 
jury •  is  proximately  caused  by  accident. 
Where  recovery  is  sought  for  death,  the 
statute  does  not  in  express  terms  say  that 
a  personal  injury  must  actually  be  sus- 
tained, but  only  that  there  must  be  an  in- 
jury "caused  by  accident." 

I  think  it  is  very  improbable  that  the  leg- 
islature intended  to  give  compensation 
where  death  resulted  from  an  accident  and 
deny  it  in  case  of  mere  disability,  and  that 
by  fair  implication  it  was  intended  to  allow 
compensation  for  death  only  where  it  re- 
sulted from  "personal  injury;"  in  other 
words,  if  recovery  can  be  had  in  case  of 
death  from  typhoid  fever,  then  indemnity 
should  be  allowed  for  disability  and  medi- 
cal attendance  in  case  of  recovery.  If  this 
be  so,  then  two  things  must  occur  as  a  con- 
dition precedent  to  recovery:  There  must 
be  a  personal  injury;  and  it  must  be  caused 
by  accident.  If  the  taking  of  typhoid  germs 
into  the  system  is  a  "personal  injury"  and 
an  "accident,"  within  the  meaning  of  the 
law,  then  the  decision  is  right.  If  there  can 
be  a  recovery  in  the  case  of  typhoid  fever, 
then  the  same  result  would  follow  for  tuber- 
culosis, pneumonia,  smallpox,  anthrax,  ordi- 
nary colds,  and  other  diseases,  where  the 
sick  employee  was  able  to  trace  the  cause 
of  his  sickness  to  some  unusual  con- 
ditions in  the  surroundings  in  which  he 
worked.  If  I  understand  the  opinion  cor- 
rectly, most,  if  not  all,  diseases  may  be  ac- 
cidental, and  recovery  may  be  had  on  ac- 
count of  the  same,  except  those  of  an 
"idiopathic"  character.  "Idiopathy"  is  de- 
nned as  "a  morbid  state  or  condition  not 
preceded  and  occasioned  by  any  other  dis- 
ease; an  individual  or  personal  state  of 
feeling;  a  mental  condition  peculiar  to  one's 
self."  "Idiopathy"  is  defined  as  "of  or  per- 
taining to  a  ...  morbid  state;  not 
secondary  or  arising  from  any  other  dis- 
ease; as  an  idiopathic  affection."  Century 
Diet. 

The  peculiar  concern  of  this  court  is  to 
get  at  the  legislative  intent.  When  the 
court  ascertains  that  intent,  it  has  not  only 
performed  its  full  duty,  but  lias  exhausted 
its  legitimate  powers.  It  has  no  right  to 
curtail  or  extend  the  provisions  of  any 
statute.  The  compensation  act  as  now  con- 
strued by  the  court  will,  I  think,  add  ma- 
terially to  the  liabilities  popularly  sup- 
posed to  exist  under  the  act,  if  it  does  not 
double  them.  If  the  legislature  so  intend- 


VBNNEN  v.  NEW  DELLS  LUMBER  CO. 


277 


ed,  well  and  good.  I  cannot  bring  myself 
to  believe  that  it  did  so  intend. 

It  is  a  matter  of  common  knowledge  that 
cases  of  sickness  and  disease  are  much 
more  numerous  than  cases  of  what  are  com- 
monly known  as  accidents.  The  compensa- 
tion act  was  passed  after  an  exhaustive 
study  of  the  subject  of  industrial  insurance 
by  a  committee  of  the  legislature,  which 
covered  a  period  of  two  years.  There  were 
two  classes  of  acts  in  operation  in  other 
jurisdictions, — one  covering  diseases  and  ac- 
cident, the  other  not,  in  terms  at  least, 
covering  disease.  If  it  had  been  the  pur- 
pose of  the  legislature  to  include  the  large 
class  of  cases  that  would  result  from  sick- 
ness, it  is  fair  to  presume  that  it  would 
have  done  so  in  express  and  unmistakable 
terms,  and  not  by  the  use  of  language  that 
is  at  least  popuarly  understood  not  to  in- 
clude them.  In  the  numerous  discussions 
on  the  proposed  law  before  the  legislature, 
which  are  fresh  in  mind,  it  does  not  appear 
to  have  occurred  to  anyone  that  diseases 
were  included  or  intended  to  be  included. 
In  the  four  years  that  have  elapsed  since 
the  original  act  was  passed,  thousands  of 
cases  of  sickness  other  than  those  of  an 
"idiopathic"  character  must  have  arisen 
where  there  was  ground  for  claiming  that 
the  sickness  was  contracted  in  the  course 
of  employment,  and  yet  this  is  the  first 
case  where  the  claim  was  made  that  the 
compensation  act  applies  to  sickness.  Even 
the  representative  of  the  deceased  is  not 
making  such  a  claim  here.  On  the  con- 
trary, she  is  resisting  it,  and  insisting  that 
she  is  free  to  pursue  her  common-law  rem- 
edy. 

Now,  the  words  "personal  injury"  are 
words  commonly  and  ordinarily  used  to  des- 
ignate injury  caused  by  external  violence, 
and  they  are  not  used  to  indicate  disease. 
Neither  do  we  speak  of  sickness  as  an  "ac- 
cident" or  an  "injury."  When  we  hear  that 
someone  has  suffered  an  accident,  we  at 
once  conclude  that  he  has  suffered  some 
more  or  less  violent  external  bodily  injury. 
It  is  in  this  sense,  I  think,  that  the  words 
"personal  injury"  and  "injury  .  .  . 
caused  by  accident"  are  used  in  the  statute. 
When  our  neighbor  has  typhoid  fever,  we 
do  not  think  of  classifying  his  ailment  as 
an  "accident,"  an  "injury,"  or  a  "personal 
injury."  It  is  only  by  an  extremely  far- 
fetched and,  I  believe,  illogical  construction 
of  the  words  referred  to,  that  they  can  be 
held  to  include  disease  not  resulting  from 
some  external  violence. 

It  is  well-nigh  a  demonstrable  certainty 
that  the  legislature  never  intended  to  pro- 
L.R.A.1916A. 


vide  compensation  for  sickness  not  resulting 
from  external  bodily  violence.  Wisconsin 
was  one  of  the  pioneers  in  this  kind  of  leg- 
islation. It  was  known  that  it  would  en- 
tail large  burdens  on  our  manufacturers,, 
who  would  thus  be  placed  at  a  disadvan- 
tage in  competing  with  employers  in  other 
states  where  no  such  law  was  then  in  ex- 
istence. The  law  was  an  optional  one,  and 
is  so  yet.  As  was  expected,  there  was  a 
great  deal  of  hesitancy  on  the  part  of  em- 
ployers about  coming  under  it.  Had  jt  been 
supposed  that  it  provided  compensation  for 
disease  or  sickness,  it  is  probable  that  the 
purpose  of  the  law  would  have  been  prac- 
tically nullified.  The  effect  of  the  decision 
in  this  case  is,  of  course,  conjectural,  but 
it  is  not  without  the  range  of  possibilities 
that  some  at  least  of  those  who  are  now  un- 
der the  act  will  exercise  their  election  not 
to  remain  under  it.  It  is  now  a  generally 
accepted  truism  that  many  diseases  attack 
those  who  are  physically  weak  and  run 
down  rather  than  those  who  are  strong  and. 
able  to  throw  off  unwelcome  disease  germs. 
The  weak  must  work  as  well  as  the  strong, 
or  else  be  taken  care  of  by  the  public,  and, 
should  they  be  discriminated  against  in  the 
matter  of  securing  employment,  much  harm 
would  follow.  The  question  whether  we- 
should  or  should  not  have  insurance  against 
sickness  is  one  of  legislative  policy.  The- 
manner  of  paying  such  insurance,  if  decided 
upon,  is  also  a  question  of  legislative  policy 
within  constitutional  limits.  I  do  not  ques- 
tion the  power  of  the  legislature  to  pass 
an  option  law  such  as  we  have  providing  for 
indemnity,  against  disease.  What  I  do  say 
is  that  the  legislature  has  not  done  so,  and 
that  the  act  passed  has  been  stretched  by 
construction  so  as  to  add  to  it  in  all  prob- 
ability as  large  a  class  of  claims  and  lia- 
bilities as  that  actually  included  in  the- 
original  act. 

The  great  weight  of  authority  is  contrary 
to  the  decision  in  this  case.  In  Fenton  v.. 
J.  Thorley  &  Co.  [1903]  A.  C.  443,  72  L.. 
J.  K.  B.  N.  S.  787,  52  Week.  Rep.  81,  89- 
L.  T.  N.  S.  314,  19  Times  L.  R.  684,  5  W. 
C.  C.  1,  it  is  said  that  the  words  "by  acci- 
dent" are  used  to  qualify  the  word  "in- 
jury," confining  it  to  certain  classes  of 
injuries  and  excluding  other  classes,  as,  for 
instance,  injuries  by  disease  or  injuries  self- 
inflicted  by  design.  In  Broderick  v.  Lon- 
don County  Council  [1908]  2  K.  B.  807,  77 
L.  J.  K.  B.  N.  S.  1127,  99  L.  T.  N.  S.  569, 
24  Times  L.  R.  822,  15  Ann.  Cas.  895,  the 
inhalation  of  sewer  gas  by  which  an  em- 
ployee contracted  enteritis  was  held  not  to- 
be  a  personal  injury  by  accident.  Paraly- 


278 


WORKMEN'S  COMPENSATION. 


sis  resulting  from  exposure  to  contact  with 
lead  was  held  not  to  be  an  injury  caused 
by  accident.  Steel  v.  Cammell,  L.  &  Co. 
[1905]  2  K.  B.  232,  74  L.  J.  K.  B.  N.  S. 
610,  53  Week.  Rep.  612,  93  L.  T.  N.  S.  357, 
21  Times  L.  R.  490,  2  Ann.  Cas.  142.  An 
abscess  in  the  hand  produced  by  continuous 
rubbing  of  a  pick  handle  held  not  to  be  an 
injury  produced  by  accident.  Marshall  v. 
East  Holywell  Coal  Co.  93  L.  T.  N.  S.  360, 
21  Times  L.  R.  494.  Working  with  a  blis- 
tered ^finger  among  red  lead  and  oil,  which 
produced  an  inflammation  and  swelling, 
held  not  an  injury  produced  by  accident. 
Walker  v.  Lilleshall  Coal  Co.  [1900]  1  Q. 
B.  488,  69  L.  J.  Q.  B.  N.  S.  192,  64  J.  P. 
85,  48  Week.  Rep.  257,  81  T.  L.  N.  S.  769, 
16  Times  L.  R.  108.  Copper  poisoning  re- 
•sulting  from  contact  with  dust  produced  by 
filing  is  not  an  injury  produced  by  accident. 
Hichens  v.  Magnus  Metal  Co.  35  N.  J.  L. 
J.  327.  Death  from  anthrax  from  handling 
animals  that  died  from  this  disease  held 
not  injury  caused  by  accident.  Sherwood 
v.  Johnson,  5  B.  W.  C.  C.  686. 

The  Michigan  court  has  held  that,  since 
an  accident  is  an  unforeseen  event  occurring 
without  design,  the  compensation  act  of  that 
state  (which  is  similar  to  ours  on  the  point 
under  discussion)  does  not  cover  occupation- 
al diseases,  which  are  diseases  arising  from 
causes  incident  to  certain  employments. 
Adams  v  Acme  White  Lead  &  Color  Works, 
182  Mich.  157,  post,  283,  148  N.  W.  485,  6 
N.  C.  C.  A.  482. 

Kindred  cases  dealing  with  the  subject 
under  consideration  have  arisen  under  poli- 
cies oi  accident  insurance.  They  hold  that 
disease  not  resulting  from  or  produced  by 
external  violence  is  not  an  accident  for 
which  recovery  can  be  had  under  such  con- 
tracts. Bacon  v.  United  States  Mut.  Acci. 
Asso.  (Stedman  v.  United  States  Mut.  Acci. 
Asso.)  123  N.  Y.  304,  9  L.R.A.  617,  20  Am. 
St.  Rep.  748,  25  N.  E.  399;  Smith  v.  Trav- 
elers' Ins.  Co.  219  Mass.  147,  L.R.A.1915B, 
872,  106  N.  E.  607;  Sinclair  v.  Maritime 
Pass.  Assur.  Co.  3  El.  &  Bl.  478,  30  L.  J. 
Q.  B.  N.  S.  77,  7  Jur.  N.  S.  367,  4  L.  T.  N. 
S.  15,  9  Week.  Rep.  342;  Dozier  v.  Fidelity 
&  C.  Co.  (C.  C.)  13  L.R.A.  114,  46  Fed.  446. 

By  §  2394-11,  Stat.,  it  is  provided  that 
no  claim  to  recover  compensation  under 
§§  2394-3  to  2394-31,  inclusive,  shall  be 
maintained  unless  within  thirty  days  after 
the  occurrence  of  the  accident  which  is 
claimed  to  have  caused  the  injury  or  death, 
notice  in  writing  be  given  to  the  employer 
stating  the  time  and  place  of  the  injury. 
This  must  mean  that  the  legislature  had  in 
mind  something  definite  and  tangible,  some- 
L.R.A.1916A. 


thing  that  could  be  located  as  to  time  and 
place,  where  it  used  the  word  "accident."  I 
do  not  see  how  this  statute  can  be  complied 
with  in  a  typhoid  fever  case. 

The  New  Jersey  court,  following  what  it 
conceives  to  be  the  English  rule,  holds  that 
"where  no  specific  time  or  occasion  can  be 
fixed  upon  as  the  time  when  an  alleged  ac- 
cident happened,  there  is  no  injury  by  ac- 
cident within  the  meaning  of  the  .  .  . 
Compensation  Act."  Liondale  Bleach,  Dye 
&  Paint  Works  v.  Riker,  85  N.  J.  L.  426,  89 
Atl.  929,  4  N.  C.  C.  A.  713. 

The  latest  expression  of  the  English 
courts  on  the  subject  to  which  attention  has 
been  called  is  Eke  v.  Hart-Dyke  [1910]  2 
K.  B.  677,  80  L.  J.  K.  B.  N.  S.  90,  103  L.  T. 
N.  S.  174,  26  Times  L.  R.  613,  3  B.  W.  C.  C. 
482,  3  N.  C.  C.  A.  230.  There  a  laborer  died 
from  ptomaine  poisoning  caused  by  the  in- 
halation of  sewer  gas.  It  was  held  that  this 
was  not  an  injury  caused  by  accident,  one 
of  the  concurring  judges  saying  that  there 
could  be  no  recovery  for  injury  by  accident 
where  you  cannot  give  a  date,  and  adding: 
"It  is  hardly  a  lawyer's  question." 

The  Brintons  Case,  cited  in  the  majority 
opinion,  is  discussed  in  Eke  v.  Hart-Dyke, 
where  it  is  referred  to  as  an  extreme  case, 
the  logic  of  which  could  be  approved  only 
on  the  theory  that  the  anthrax  germ  which 
was  floating  in  the  air  and  which  lodged  in 
the  eye  of  the  deceased  produced  an  abrasion 
which  developed  infection.  In  the  decision 
the  case  is  compared  with  a  spark  flying 
from  an  anvil  and  injuring  the  eyesight. 

The  Scotch  case  cited  in  the  opinion  ( Alloa 
Coal  Co.  v.  Drylie)  is  authority  for  affirming 
the  decision  in  the  present  case,  but  is  much 
j  more  restricted  in  its  application  than  is 
the  present  decision.  The  opinion  of  Lord 
Dundas,  which  was  concurred  in  by  a  ma- 
jority of  the  judges,  states:  "The  present 
case  could  never  be  fairly  cited  in  the  fu- 
ture as  indicating  that  the  court  is  willing 
to  hold  that  a  mere  ordinary  disease,  e.  g., 
pneumonia,  entitles  a  workman  to  compen- 
sation. The  court  must  be  satisfied  .  .  . 
that  the  disease  was  attributable  to  some 
particular  event  or  occurrence  of  an  unusual 
and  unexpected  character  incident  to  the  em- 
ployment, which  could,  in  the  light  of  the 
decisions,  be  fairly  described  as  an  accident." 

I  think  this  is  the  only  decided  case  to 
which  attention  has  been  called  which  tends 
to  support  the  decision  of  the  court,  while 
the  cases  to  the  contrary  are  numerous.  In 
the  two  Wisconsin  cases  cited,  the  disease 
for  which  recovery  was  allowed  was  prox- 
imately  caused  by  an  injury  resulting  from 
external  violence. 


RE  HURLE. 


279 


MASSACHUSETTS     SUPREME    JUDI- 
CIAL  COURT. 

RE  WILLIAM  HURLE,  Employee. 

RE    PLYMOUTH    CORDAGE    COMPANY, 
Employer. 

RE  AMERICAN  MUTUAL  LIABILITY  IN- 
SURANCE COMPANY,  Insurer,  Appt. 

(217  Mass.  223,  104  N.  E.  336.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  blindness. 

1.  Blindness   through   optic   neuritis   due 
to   poisonous  gases   from  a   furnace   about 
which  the  injured  person  is  obliged  to  work 
is  a  personal  injury  within  the  meaning  of 
a    workmen's    compensation    act    providing 
compensation    for    any    injury    arising   out 
of  and  in  the  course  of  the  employment,  al- 
though the  statute  requires  that  informa- 
tion shall  be  given  as  to  the  time,  place, 
and  cause  of  the  injury  as  soon  as  practical 
after  it  is  suffered,  and  that  the  employer 
shall  make  return  of  an  accident  resulting 
in  any  injury. 

For  other  cases,  see  Master  and  Servant, 
II.  a,  1,  in  Dig.  1-52  N.  8. 

Same  —  absence  of  direct  lesion  —  In- 
dustrial Accident  Board. 

2.  Giving    supervision    of    claims    under 
the  workmen's  compensation  act  to  an  "In- 
dustrial  Accident   Board,  does  not  restrict 
compensation  to  injuries  caused  by  visual 
contact  or  direct  lesion. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1',  in  Dig.  1-52  N.  S. 

(February  28,  1914.) 

APPEAL  by  the  insurer  from  a  decree 
of  the  Superior  Court  for  Suffolk  Coun- 
ty affirming  a  decision  of  the  Industrial  Ac- 
cident Board  holding  claimant  totally  in- 
capacitated for  work  under  the  workmen's 
compensation  act,  and  ordering  the  insurer 
to  pay  him  certain  amounts  for  the  injury 
sustained.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edward  C.  Stone,  with  Messrs. 
Sawyer,  Hardy,  &  Stone,  for  appellant: 

An  employee  suffering  from  acute  optic 
neuritis  is  not  entitled  to  compensation  un- 
der the  workmen's  compensation  act. 

28  Ops.  Atty.  Gen.  254;  Com.  v.  Mosby, 
163  Mass.  291,  39  N.  E.  1030;  Spade  v. 
Lynn  &  B.  R.  Co.  168  Mass.  285,  38  L.R.A. 
512,  60  Am.  St.  Rep,  393,  47  N.  E.  88,  2 
Am.  Neg.  Rep.  566,  172  Mass.  490,  43 
L.R.A.  832,  70  Am.  St.  Rep.  298,  52  N.  E. 


Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to  whether  compensation  is  recoverable 
for  incapacity  resulting  from  diseases  fol- 
lowing accidents,  see  annotation,  post,  289. 
L.R.A.1916A. 


747,  5  Am.  Neg.  Rep.  367 ;  Berard  v.  Boston 
&  A.  R.  Co.  177  Mass.  179,  58  N.  E.  586; 
Steverman  v.  Boston  Elev.  R.  Co.  205  Mass. 
508,  91  N.  E.  919;  Driscoll  v.  Gaffey,  207 
Mass.  107,  92  N.  E.  1010;  Steel  v.  Cammell 
[1905]  2  K.  B.  232,  7  W.  C.  C.  9,  74  L. 
J.  K.  B.  N.  S.  610,  53  Week.  Rep.  612, 
93  L.  T.  N.  S.  357,  21  Times  L.  R.  490,  2 
Ann.  Cas.  490;  Eke  v.  Hart-Dyke  [1910] 
2  K.  B.  677,  3  B.  W.  C.  C.  482,  80  L.  J. 
K.  B.  N.  S.  90,  103  L.  T.  N.  S.  174,  26 
Times  L.  R.  613,  3  N.  C.  C.  A.  230. 

Mr.  Edwin  A.  Howes,  Jr.,  for  appellee. 

Rugg,  Ch.  J.,  delivered  the  opinion  of  the 
court : 

This  is  a  case  under  the  workmen's  com- 
pensation act.  The 'facts  as  found  by  the 
Industrial  Accident  Board  are  that  the  em- 
ployee is  totally  incapacitated  for  work  by 
personal  injury  which  arose  out  of  and  in 
the  course  of  his  employment,  and  which 
caused  total  loss  of  vision  in  both  eyes,  and 
which  resulted  from  an  acute  attack  of  optic 
neuritis  induced  by  poisonous  coal  tar  gases. 
His  work  was  about  furnaces  for  produc- 
ing gas  by  the  burning  of  coal,  in  the  top 
of  which  were  several  holes  through  which, 
after  opening  a  cover,  he  could  watch  the 
fire.  It  was  his  duty  to  see  that  the  fur- 
naces were  supplied  with  coal  and  burning 
evenly,  and  to  prevent  incandescent  spots 
caused  by  the  burning  by  forced  draft.  It 
Was  necessary  for  him  to  open  one  or  an- 
other of  these  holes  about  seventy  times  a 
day,  and  whenever  these  holes  were  opened 
poisonous  gases  were  given  forth.  The  in- 
halation of  these  caused  his  blindness. 

The  question  to  be  decided  is  whether  this 
was  a  "personal  injury  arising  out  of  and 
in  the  course  of  his  employment"  within 
the  meaning  of  those  words  in  Stat.  1911, 
chap.  751,  p.  2,  §  1.  Unquestionably  it 
arose  out  of  and  in  the  course  of  his  em- 
ployment. The  only  point  of  difficulty  is 
whether  it  is  a  "personal  injury." 

The  words  "personal  injury"  have  been 
given  in  many  connections  a  comprehensive 
definition.  They  are  broad  enough  to  in- 
clude the  husband's  right  to  recover  for 
damage  sustained  by  bodily  harm  to  his 
wife,  the  alienation  of  a  husband's  af- 
fections, the  seduction  of  one's  daughter, 
and  other  kindred  tortious  acts.  Mulvey  v. 
Boston,  197  Mass.  178,  83  N.  E.  402,  14 
Ann.  Cas.  349,  and  cases  there  cited;  Riddle 
v.  MacFadden,  201  N.  Y.  215,  94  N.  E.  644; 
New  York,  P.  &  N.  R.  Co.  v.  Waldron,  116 
Md.  441,  39  L.R.A.  (N.S.)  502,  82  Atl.  709; 
Jefferson  Fertilizer  Co.  v.  Rich,  ]82  Ala. 
633,  62  So.  40;  McDonald  v.  Brown,  23  R. 
I.  546,  58  L.R.A.  768,  91  Am.  St.  Rep. 
659,  51  Atl.  213;  Tomlin  v.  Hildreth,  65 
N.  J.  L.  440,  445,  47  Atl.  649;  Sharkey  v. 


280 


WORKMEN'S  COMPENSATION . 


Skilton,  83  Conn.  503,  510,  77  Atl.  950. 
They  are  not  confined  to  the  instances  where 
the  wrong  can  be  described  technically  as 
trespass  to  the  person  vi  et  armis.  The 
statement  in  Com.  v.  Mosby,  163  Mass.  291, 
294,  39  N.  E.  1030,  that  a  "threat  to  in- 
jure the  person  of  another  naturally  means 
a  threat  to  use  actual  physical  force,"  is 
not  at  variance  with  this  idea.  There  were 
special  reasons  why  the  word  "injury"  was 
given  a  constricted  meaning  in  28  Opinions 
of  the  Attorneys  General  of  the  United 
States,  254.  It  has  been  interpreted  broad- 
ly in  policies  of  accident  insurance.  Free- 
man v.  Mercantile  Mut.  Acci.  Asso.  156 
Mass.  351,  17  L.R.A.  753,  30  N.  E.  1013. 

At  common  law  the  incurring  of  a  dis- 
ease or  harm  to  health  is  such  a  personal 
wrong  as  to  warrant  a  recovery  if  the  other 
elements  of  liability  for  tort  are  present 
Hunt  v.  Lowell  Gaslight  Co.  8  Allen,  169, 
85  Am.  Dec.  697;  Allen  v.  Boston,  159 
Mass.  324,  38  Am.  St.  Rep.  423,  34  N.  E. 
519;  Larson  v.  Boston  Kiev.  R.  Co.  212 
Mass.  267,  98  N.  E.  1048;  Deisenrieter  v. 
Kraus-Merkel  Malting  Co.  92  Wis  164,  66 
N.  W.  112;  Wagner  v.  H.  W.  Jayne-Chemi- 
cal  Co.  147  Pa.  475,  30  Am.  St.  Rep.  745,  23 
Atl.  772.  See  also  Gossett  v.  Southern  R. 
Co.  115  Tenn.  376,  1  L.R.A.(N.S.)  97,  112 
Am.  St.  Rep.  846,  89  S.  W.  737.  Damages 
of  this  sort  have  been  held  not  recoverable 
under  the  mill  acts,  although  an  independent 
action  would  lie  if  a  nuisance  was  created. 
Eames  v.  New  England  Worsted  Co.  11  Met. 
570;  Fuller  v.  Chicopee  Mfg.  Co.  16  Gray, 
46.  See  also  Wellington  v.  Boston  &  M. 
R.  Co.  158  Mass.  185,  189,  33  N.  E.  393. 
The  preponderance  in  recent  years  of  actions 
grounded  upon  some  physical  violence  has 
tended  to  emphasize  the  aspect  of  injury 
which  depends  upon  visual  contact  or  direct 
lesion.  But  that  is  by  no  means  the  ex- 
clusive signification  of  the  word  either  in 
common  speech  or  in  legal  use. 

The  English  workmen's  compensation  act 
affords  compensation  only  where  the  work- 
man receives  "personal  injury  by  accident," 
It  adds  to  the  personal  injury  alone  re- 
quired by  our  act  the  element  of  accident. 
Yet  it  has  been  held  frequently  that  disease 
induced  by  accidental  means  was  ground 
for  recovery ;  as,  for  example,  a  rupture 
resulting  from  overexertion  (Fenton  v. 
Thorley  [1903]  A.  C.  443,  72  L.  J.  K.  B. 
N.  S.  787,  52  Week.  Rep.  81,  89  L.  T.  N.  S. 
314,  19  Times  L.  R.  684)  ;  infection  of 
anthrax  from  a  bacillus  from  wool  which 
was  being  sorted  (Brintons  v.  Turvey  [1905] 
A.  C.  230,  74  L.  J.  K.  B.  N.  S.  474,  53 
Week.  Rep.  641,  92  L.  T.  N.  S.  578,  21 
Times  L.  R.  444,  2  Ann.  Caa.  137)  ;  heat  from 
a  furnace  (Ismay  v.  Williamson  [1908]  A. 
C.  437,  77  L.  J.  P.  C.  N.  S.  107,  99  L.  T. 
L.R.A. 1916A. 


N.  S.  595,  24  Times  L.  R.  881,  52  Sol.  Jo. 
713)  ;  sunstroke  (Morgan  v.  The  Zenaida,  25 
Times  L.  R.  446,  2  B.  W.  C.  C.  19)  ;  pneu- 
monia induced  by  inhalation  of  gas  (Kelly 
v.  Auchenlea  Coal  Co.  [1911]  S.  C.  864,  4 
n.  W.  C.  C.  417,  48  Scot.  L.  R.  768.  See 
also  Brown  v.  Kent  [1913]  3  K.  B.  624,  82 
L.  J.  K.  B.  N.  S.  1039,  109  L.  T.  N.  S.  293, 
29  Times  L.  R.  702,  6  B.  W.  C.  C.  745,  and 
Alloa  Coal  Co.  v.  Drylie  [1913]  S.  C.  549, 
6  B.  W.  C.  C.  398,  50  Scot.  L.  R.  350.  We 
lay  these  cases  on  one  side,  however,  because 
it  is  plain  from  the  third  schedule  of 
Stat.  6  Edward  VII.  chap.  58,  that  certain 
occupational  diseases  were  intended  to  be 
included  within  the  English  act. 

Hood  v.  Maryland  Casualty  Co.  206  Mass. 
223,  30  L.R.A.  (N.S.)  1192,  138  Am.  St. 
Rep.  379,  92  N.  E.  329,  goes  far  toward 
deciding  the  case  at  bar.  That  was  an  ac- 
tion by  an  employer  of  labor  against  an  in- 
surer who  had  contracted  to  indemnify 
against  damages  sustained  by  the  employer 
by  reason  of  liability  to  its  employees  for 
"bodily  injuries  accidentally  suffered"  by 
them  in  their  employment.  The  employer 
had  been  obliged  to  respond  in  damages  to 
one  Barry,  an  employee,  who  had  become  in- 
fected by  glanders  while  cleaning  a  stable. 
It  was  said  in  the  opinion,  at  page  225  of 
206  Mass.:  "It  is  plain  that  Barry  suffered 
bodily  injury  in  consequence  of  becoming  in- 
fected with  glanders;  as  much  so  as  if  he 
had  had  a  leg  or  an  arm  broken  by  a  kick 
from  a  vicious  horse.  Indeed,  it  is  possible 
that  the  bodily  injury  caused  by  glanders 
was  greater  and  more  lasting  than  that 
caused  by  a  broken  leg  or  arm  would  have 
been."  That  case  related  to  the  kind  of 
bodily  injuries  which  arise  from  the  rela- 
tion of  master  and  servant.  It  was  decided 
about  one  year  before  the  enactment  of  our 
workmen's  compensation  act.  It  relates, 
to  the  same  general  subject-matter.  The 
law  of  accident  insurance  has  been  applied 
to  injuries  under  the  workmen's  compensa- 
tion act  in  England.  Wicks  v.  Dowell 
[1905]  2  K.  B.  225,  74  L.  J.  K,  B.  N.  S. 
572,  53  Week.  Rep.  515,  92  L.  T.  N.  S.  077, 
21  Times  L.  R.  487,  2  Ann.  Cas.  732. 

There  is  nothing  in  the  act  which  leads 
to  the  conclusion  that  "personal  injuries" 
was  there  used  in  a  narrow  or  restricted 
sense.  The  provisions  as  to  notice  of  the 
injury  (part  2,  §§  15-18,  both  inclusive,  as 
amended  by  Stat.  1912,  chap.  172,  and 
chap.  571,  §  3)  indicate  a  purpose  that  in- 
formation shall  be  .given  as  to  the  time, 
place,  and  cause  of  the  injury  as  soon  as 
practicable  after  it  is  suffered.  But  this 
requirement  can  be  complied  with  in  the 
case  of  an  injury  caused  by  the  inhalation 
of  a  poisonous  gas  producing  such  results 
as  here  are  disclosed,  as  well  as  in  the  case 


RE  HURLE. 


281 


of   a   blow   upon   the   body.      An   argument 
may  be  drawn  from  the  provisions  of  part 

3,  §    18,   as   amended   by   Stat.   1913,  chap. 
746,  §  1,  in  favor  of  a  liberal  interpretation 
of  "personal   injuries."     By  the  section  as 
originally  enacted  the    duty    was    imposed 
upon  every  employer  to  keep  a  record  of  all 
injuries,  but  he  was  required  to  make  re- 
turn to  the  Industrial  Accident  Board  only 
of  "an  accident  resulting  in  a  personal  in- 
jury."   By  the  amendment,  which,  of  course, 
has  no  effect  upon  the  legal  rights  of  the 
parties  in  the  present  action,  but  which  may 
be   resorted   to   for   discovery   of   legislative 
intention,  the  employer  is  required  to  make 
return  of  "the  occurrence  of  an  injury"  and 
to  state  "the  date  and  hour  of  any  accident 
causing   the    injury."      If   these    words   are 
used  accurately,  a  distinction  is  drawn  be- 
tween the  injury  and  the  accident  causing 
the   injury.     The  authority  conferred  upon 
the  board  of  directors  of  the  Massachusetts 
Employees'  Insurance  Association,   by   part 

4,  §  18,  is  to  "make  and  enforce  reasonable- 
rules  and  regulations  for  the  prevention  of 
injuries,"    and    not    for    the    prevention    of 
accidents.     See  also  Stat.   3913,  chap.  813. 
The    name     "Industrial     Accident     Board," 
which  is  the  administrative  body  created  by 
part  3,   is   a   mere  title,  and  cannot  fairly 
be  treated  as  restrictive  of  its  duties. 

The  difference  between  the  English  and 
Massachusetts  acts  in  the  omission  of  the 
words  "by  accident"  from  our  act,  which 
occur  in  the  English  act  as  characterizing 
personal  injuries,  is  significant  that  the  ele- 
ment of  accident  was  not  intended  to  be 
imported  into  our  act.  The  noxious  vapors 
which  caused  the  bodily  harm  in  this  case 


were  the  direct  production  of  the  employer. 
The  nature  of  the  workman's  labor  was  such 
that  they  were  bound  to  be  thrust  in  his 
face.  The  resulting  injury  is  direct.  If  the 
gas  had  exploded  within  the  furnace  and 
thrown  pieces  of  "cherry"  hot  coal  through 
the  holes  into  the  workman's  eyes,  without 
question  he  would  have  been  entitled  to 
compensation.  Indeed  there  probably  would 
have  been  common-law  liability  in  such 
case.  Dulligan  v.  Barber  Asphalt  Paving 
Co.  201  Mass.  227,  87  N.  E.  567.  There  ap- 
pears to  be  no  sound  distinction  in  princi- 
ple between  such  case  and  gas  escaping 
through  the  holes  and  striking  him  in  the 
face  whereby  through  inhalation  the  vision 
is  destroyed.  The  learned  counsel  for  the 
insurer  in  his  brief  has  made  an  exhaustive 
and  ingenious  analysis  of  the  entire  act 
touching  the  words  "injury"  or  "injuries," 
and  has  sought  to  demonstrate  that  it  can- 
not apply  to  an  injury  such  as  that  sus- 
tained in  the  case  at  bar.  But  the  argu- 
ment is  not  convincing.  It  might  be 
decisive  if  accident  had  been  the  statutory 
word.  It  is  true  that  in  interpreting  a 
statute  words  should  be  construed  in  their 
ordinary  sense.  Injury,  however,  is  usually 
employed  as  an  inclusive  word.  The  fact 
remains  that  the  word  "injury,"  and  not 
"accident,"  was  employed  by  the  legislature 
throughout  this  act.  It  would  not  be  ac- 
curate but  lax  to  treat  the  act  as  if  it  re- 
ferred merely  to  accidents.  Warner  v. 
Couchman  []912]  A.  C.  35,  at  page  38,  81 
L.  J.  K.  B.  N.  S.  45,  105  L.  T.  N.  S.  676, 
28  Times  L.  R.  58,  56  Sol.  Jo.  70,  5  B.  W. 
C.  C.  177,  49  Scot.  L.  R.  681. 
Decree  affirmed. 


SUPREME  COURT  OF  CALIFORNIA. 

(In  Bane.) 

GREAT    WESTERN    POWER    COMPANY 

"V. 

A.  J.  PILLSBURY  et  al.,  as  Members  of 
and  Constituting  the  Industrial  Acci- 
dent Commission  of  the  State  of  Califor- 
nia. 

(—  Cal.  —,151  Pac.  1130.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  blood  poisoning. 

Blood  poisoning  from  an  abrasion  of  the 
skin  received  by  an  employee  in  the  course 
of  his  employment  is  a  proximate  result  of 

Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As     to     recovery     of     compensation     for 
incapacity    resulting   from   disease,   see   an- 
notation, post,  289. 
L.R.A.1H16A. 


I  the  injury,  so  as  to  come  within  the  opera- 
tion of  the  workmen's  compensation  act. 
For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8. 

(September  21,  1915.) 

APPLICATION  by  petitioner  for  a  writ 
to  review  an  award  of  the  Industrial 
Accident  Commission  directing  it  to  pay  to 
an  injured  employee  a  certain  amount  as 
compensation  for  an  injury  alleged  to  have 
been  suffered  by  him  while  in  petitioner's 
employ.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Guy  C.  Earl  and  W.  H.  Spauld- 
iiig-,  for  petitioner: 

The  injury  and  disability  claimed  herein 
was  not  "proximately  caused  by  accident," 
within  the  meaning  of  §  12  of  the  work- 
men's compensation  act,  but  was  due  to  in- 
fection by  germs  suffered  later  at  some 


282 


WORKMEN'S  COMPENSATION. 


time   and   place   not   disclosed   by   the   evi- 
dence. 

Mitchell  v.  Glamorgan  Coal  Co.  23  Times 
L.  R  588,  9  W.  C.  C.  16 ;  Walker  v.  Lilies- 
hall  Coal  Co.  [1900]  1  Q.  B.  488,  81  L.  T. 
N.  S.  769,  2  W.  C.  C.  7,  69  L.  J.  Q.  B.  N. 
S.  192,  64  J.  P.  85,  48  Week.  Rep.  257,  16 
Times  L.  R.  108;  Chandler  v.  Great  West- 
ern R.  Co.  (1912)  106  L.  T.  N.  S.  479,  5 

B.  W.  C.  C.  254. 

Messrs.  Christopher  M.  Bradley  and 
Aaron  L.  Sapiro,  for  respondents: 

The  findings  of  fact  made  by  the  Com- 
mission are  conclusive. 

Hills  v.  Blair,  182  Mich.  20,  148  N.  W. 
243,  7  N.  C.  C.  A.  409;  Bentley's  Case,  217 
Mass.  79,  104  N.  E.  432,  4  N.  C.  C.  A.  559 ; 
Donovan's  Case,  217  Mass.  76,  104  N.  E. 
431,  Ann.  Gas.  1915C,  778,  4  N.  C.  C.  A. 
549 ;  Reck  v.  Whittlesberger,  181  Mich.  463, 
148  N.  W.  247;  Sexton  v.  Newark  Dist. 
Teleg.  Co.  84  N.  J.  L.  85,  86  Atl.  451,  3  N. 

C.  C.    A.    569;    Pigeon's    Case,    216    Mass. 
51,   102   N.   E.   932,  Ann.   Cas.   1915A,   737, 
4  N.  C.  C.  A.  516;   Rayner  v.  Sligh  Furni- 
ture Co.   180  Mich.   168,  ante,  22,   146  N. 
W.  665,  4  N.  C.  C.  A.  851 ;  Rumboll  v.  Nun- 
nery Colliery  Co.  80  L.  T.  N.  S.  42,  63  J. 
P.    132,   1   W.   C.   C.   28;    Diaz's   Case,   217 
Mass.  36,  104  N.  E.  384,  5  N.  C.  C.  A.  609 ; 
Nickerson's  Case,  218  Mass.  158,  105  N.  E. 
604,  5  N.  C.  C.  A.  645;   George  v.  Glasgow 
Coal  Co.   [1908]  W.  N.  219,  25  Times  L.  R 
57,  46  Scot.  L.  R.  28,  21   B.  W.  C.  C.  125, 
99  L.  T.  N.  S.  782;  Rees  v.  Powell  Duffryn 
Steam  Coal  Co.  64  J.  P.  164;  John  v.  Albion 
Coal  Co.  18  Times  L.  R.  27,  65  J.  P.  788, 
4  W.  C.  C.  15;   Douglas  v.  United  Mineral 
Min.   Co.  2   W.   C.   C.   15;    Herrick's  Case, 
217  Mass.  Ill,  104  N.  E.  432,  4  N.  C.  C.  A. 
554;   Burns's  Case,  218  Mass.  8,  105  N.  E. 
601,  5  N.  C.  C.  A.  635;  Buckley's  Case,  218 
Mass.  354,  105  N.  E.  979,  5  N.  C.  C.  A.  613; 
Leishmann  v.  Dixon,   [1910]    S.   C.  498,  47 
Scot.  L.  R.  410,  3   B.  W.  C.  C.  560;   Del 
Mar   Water,   Light  &  P.   Co.   v.   Eshleman, 
167    Cal.   666,   L.R.A.— ,  — ,   140   Pac.   591, 
948;    Northwestern    Iron   Co.   v.   Industrial 
Commission,    154    Wis.    97,  post,    366,    142 
N.  W.  271,  Ann.  Cas.  1915B,  877. 

Shaw,  J.,  delivered  the  opinion  of  the 
court : 

This  is  an  original  application  to  this 
court,  under  §  84  of  the  workmen's  compen- 
sation act,  to  review  the  award  of  the  In- 
dustrial Accident  Commission  directing  the 
petitioner  to  pay  to  one  Ernest  Dreyer  the 
sum  of  $78.97,  and  the  further  sum  of 
$9.37  each  week,  beginning  September  17, 
1914,  until  the  termination  of  the  disabil- 
ity. Dreyer  was  injured  while  in  the  em- 
ployment of  the  petitioner  and  in  the  course 
of  said  employment.  The  only  point  made 
L.R.A.1916A. 


against  the  award  is  the  claim  that  the  ac- 
cident was  not  the  proximate  cause  of  the 
disability  for  which  the  award  was  made. 

Dreyer  was  engaged  in  shaving  and  paint- 
ing poles  for  the  petitioner.  On  July  1, 
1914,  while  at  work,  he  accidentally  caught 
his  left  hand  between  one  of  the  poles  and 
another  piece  of  timber,  thereby  bruising 
the  flesh  and  knocking  a  small  piece  of  skin 
off  the  back  of  the  hand.  For  the  next  two 
days,  July  2d  and  July  3d,  he  continued 
his  work,  but  used  the  other  hand  only.  On 
the  third  day  the  injured  hand  began  to 
pain  him  severely.  The  4th  came  on  Satur- 
day, and  no  work  was  carried  on.  On  Mon- 
day lie  was  unable  to  work,  because  of  the 
condition  of  the  hand  and  the  severe  pain 
therein.  Inflammation  and  suppuration  set 
in ;  the  same  being  produced  by  poisonous 
germs  entering  the  flesh  through  the  break 
in  the  skin  caused  by, the  accident.  It  was, 
of  course,  impossible  to  ascertain  the  source 
of  these  germs,  or  when  they  gained  en- 
trance; but  the  time  that  elapsed  between 
the  abrasion  and  the  beginning  of  the  severe 
pain,  which  developed  into  the  suppuration, 
was  the  usual  period  of  infection  of  the 
variety  styled  by  the  physician  as  "staphy- 
lococci."  This,  it  appears,  is  the  scientific 
name  of  one  form  of  the  disease  commonly 
termed  blood  poisoning  by  the  uninitiated. 
The  disability  for  which  the  award  was 
made  was  caused  by  this  inflammation  and 
suppuration. 

We  perceive  no  merit  in  the  claim  that 
this  disability  was  not  proximately  caused 
by  the  injury  and  abrasion  of  the  skin. 
Such  results  do  ensue  from  such  abrasions, 
and  they  are  brought  about  by  the  opera- 
tion of  what  are  ordinarily  considered  nat- 
ural forces;  that  is,  by  the  intervention  of 
infectious  germs  usually,  or  at  least  fre- 
quently, present  in  the  air  or  on  the  sur- 
face of  substances  with  which  any  person 
may  come  in  contact,  and  which  are  invisi- 
ble to  the  eye  and  imperceptible  to  the 
senses.  The  accident  was  the  proximate 
cause  of  the  injury,  within  the  definition  of 
the  term  "proximate  cause"  as  elaborately 
stated  by  Justice  Henshaw  in  Merrill  v.  Los 
Angeles  Gas  &  Electric  Co.  158  Cal.  503, 
31  L.R.A.(N.S.)  559,  139  Am.  St.  Rep.  134, 
]  ]  1  Pac.  534.  W7e  need  not  here  repeat 
the  definition  or  the  discussion  of  the  sub- 
ject given  in  that  opinion.  It  follows  that 
the  award  of  the  Commission  must  be  af- 
firmed. 

We  concur:  Angellotti,  Ch.  J.;  Sloss, 
J. ;  Melvin,  J. ;  Lorigan,  J. ;  Lawlor,  J. 

Petition  for  rehearing  denied  October  18, 
]915. 


ADAMS  v.  ACME  WHITE  LEAD  &  C.  WORKS. 


283 


MICHIGAN   SUPREME   COURT. 

SARAH  E.  ADAMS 

v. 

ACME  WHITE  LEAD  &  COLOR  WORKS, 
Plff.  in  Certiorari. 

(]82  Mich.  157,  148  X.  W.  485.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  occupational  disease. 

1.  A   statute   providing   compensation   in 
case  an  employee  receives  a  personal  injury 
arising  out  of  and  in  the  course  of  his  em- 
ployment does  not  include  an  occupational 
disease  such  as  lead  poisoning,  where  the 
title  purports  to  provide  compensation  for 
accidental  injuries. 

For  other  cases,  see  Master  and  Servant,  II. 

a,   1,  in  Dig.  1-52  N.  8. 
Statute  —  title  —  sufficiency. 

2.  A  title  to  an  act  providing  compensa- 
tion for  accidental  injury  will  not  cover  a 
provision  of  compensation  for  occupational 
disease. 

For  other  cases,  see  Statutes,  I.  e,  2,  in  Dig. 
1-52  N.  8. 

(July  25,  1914.) 

CERTIORARI  to  the  Industrial  Accident 
Board  to  review  an  order  affirming  a 
decision  of  the  arbitration  committee  in 
favor  of  claimant,  and  awarding  compensa- 
tion to  her  for  the  death  of  her  husband 
because  of  injuries  received  while  in  de- 
fendant's employment.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Douglas,  Hainan.  &  Barbour, 
for  plaintiff  in  certiorari: 

Lead  poisoning  is  not  an  accident. 

Bacon  v.  United  States  Mut  Acci.  Asso. 
( Stedman  v.  United  States  Mut.  Acci  Asso. ) 
123  N.  Y.  304,  9  L.R.A.  617,  20  Am.  St. 
Rep.  748,  25  N.  E.  399;  Sinclair  v.  Mari- 
time Pass.  Assur.  Co.  3  El.  &  El.  478,  30 
L.  J.  Q.  B.  N.  S.  77,  7  Jur.  N.  S.  367,  4 
L.  T.  N.  S.  15,  9  Week.  Rep.  342;  Dozier 
v.  Fidelity  &  C.  Co.  13  L.R.A.  114,  46  Fed. 
446;  Hensey  v.  White  [1900]  1  Q.  B.  481, 
69  L.  J.  Q.  B.  N.  S.  188,  48  Week.  Rep.  257, 
63  J.  P.  804,  81  L.  T.  N.  S.  767,  16  Times 
L.  R.  64;  Steel  v.  Cammell  [1905]  2  K.  B. 
232,  74  L.  J.  K.  B.  N.  S.  610,  53  Week.  Rep. 
612,  93  L.  T.  N.  S.  357,  21  Times  L.  R. 
490,  2  Ann.  Gas.  142 ;  Broderick  v.  London 
County  Council  [1908]  2  K.  B.  807,  77  L.  J. 
K.  B.  N.  S.  1127,  99  L.  T.  N.  S.  569,  24 
Times  L.  R.  822,  1  B.  W.  C.  C.  219,  16 
Ann.  Cas.  885;  Eke  v.  Hart-Dyke  [1910] 
2  K.  B.  677,  80  L.  J.  K.  B.  N.  S.  90,  103 


Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to  whether  the  workmen's  compensa- 
tion   acts   cover   occupational   diseases,   see 
annotation,  post,  289. 
L.R.A.1916A. 


L.  T.  N.  S.  174,  26  Times  L.  R.  613,  3  B.  W. 
C.  C.  482 ;  Walker  v.  Hockney  Bros.  2  B.  W. 
C.  C.  20;  Martin  v.  Manchester  Corp. 
[1912]  W.  N.  105,  106  L.  T.  N.  S.  741,  76 
J.  P.  25],  28  Times  L.  R.  344,  [1912]  W.  C. 
Rep.  289,  5  B.  W.  C.  C.  259. 

It  was  not  the  intention  of  the  legisla- 
ture to  provide  compensation  for  "diseases," 
but  for  "accidents"  only. 

Steel  v.  Cammell  [1905]  2  K.  B.  232,  74 
L.  J.  K.  B.  N.  S.  610,  53  Week.  Rep.  612,  93 
L.  T.  N.  S.  357,  21  Times  L.  R.  490,  2  Ann. 
Cas.  142;  Eke  v.  Hart-Dyke  [1910]  2  K.  B. 

B.  677,  80  L.  J.  K.  B.  N.  S.  90,  103  L.  T. 
N.  S.  174,  26  Times  L.  R.  613,  3  B.  W.  C. 

C.  482;    Hichens  v.   Magnus   Metal   Co.   35 
N.  J.  L.  J.  327. 

If  the  act  applies  to  industrial  diseases, 
it  is,  so  far  at  least,  unconstitutional. 

Cooley,  Const.  Lim.  7th  ed.  212;  Mc- 
Donald v.  Springwells  Twp.  152  Mich.  28, 
115  N.  W.  1066;  Fairview  v.  Detroit,  150 
Mich.  1,  113  N.  W.  368;  Citizens'  Sav. 
Bank  v.  Auditor  General,  123  Mich.  511,  82 
N.  W.  214;  Grosvenor  v.  Duffy,  121  Mich. 
220,  80  N.  W.  19 ;  Re  Hauck,  70  Mich.  396, 
38  N.  W.  269;  Lottery  Case  (Champion  v. 
Ames)  188  U.  S.  321,  47  L.  ed.  492,  23  Sup. 
Ct.  Rep.  321,  13  Am.  Grim.  Rep.  561;  Ryer- 
son  v.  Utley,  16  Mich.  269;  Sun  Mut.  Ins. 
Co.  v.  New  York,  8  N.  Y.  241;  Ex  parte 
Knight,  52  Fla.  144,  120  Am.  St.  Rep.  191, 
41  So.  786. 

Mr.  Noble  T.  Lawson,  for  defendant  in 
certiorari : 

Lead  and  other  classes  of  poisoning  and 
diseases  contracted  in  the  course  of  employ- 
ment have  been  construed  to  be  accidental 
injuries,  within  the  meaning  of  the  various 
compensation  acts. 

Boyd,  Workmen's  Compensation,  p.  1039, 
§  453;  Higgins  v.  Campbell  [1904]  1  K.  B. 
328,  73  L.  J.  K.  B.  N.  S.  158,  68  J.  P.  193, 

52  Week.  Rep.  195,  89  L.  T.  N.  S.  660,  20 
Times  L.  R.  129,  6  W.  C.  C.  1,  affirmed  in 
[1905]  A.  C.  233,  74  L.  J.  K.  B.  N.  S.  474, 

53  Week.  Rep.  641,  92  L.  T.  N.  S.  578,  21 
Times  L.  R.  444,  7  W.  C.  C.  1,  2  Ann.  Cas. 
137;  Ismay  v.  Williamson  [1908]  A.  C.  437, 
77  L.  J.  P.  C.  N.  S.  107,  99  L.  T.  N.  S.  595, 
24  Times  L.  R.  881,  42  Ir.  Law  Times,  213, 
52  Sol.  Jo.  713,  1  B.  W.  C.  C.  232 ;  Dotzauer 
v.  Strand  Palace  Hotel,  3  B.  W.  C.  C.  387; 
Sheeran  v.  Clayton,  44  Ir.  Law  Times,  52, 
3  B.  W.  C.  C.  583;  Kelly  v.  Auchenlea  Coal 
Co.  [1911]  S.  C.  864,  48  Scot.  L.  R.  768,  4 

B.  W.  C.  C.  417;  Harper,  Workmen's  Com- 
pensation, 23;   Evans  v.  Dodd,  5  B.  W.  C. 

C.  305;    Stinton  v.  Brandon  Gas  Co.  5  B. 
W.  C.  C.  426;   Hoare  v.  Arding,  5  B.  W. 
C.  C.  36. 

The  Michigan  workmen's  compensation 
act  is  not  limited  to  accidental  injuries,  but 
is  broad  enough,  both  in  the  title  and  in 


284 


WORKMEN'S  COMPENSATION. 


the  body  of  the  act,  to  cover  injuries  of 
all  kinds  suffered  in  the  course  of  employ- 
ment. 

Brintous  v.  Turvey  [1905]  A.  C.  233,  74 
L.  J.  K.  B.  N.  S.  474,  53  Week.  Rep.  641, 
92  L.  T.  N.  S.  578,  21  Times  L.  R.  444,  7 
W.  C.  C.  1,  2  Ann.  Gas.  137;  Stone  v. 
Travelers'  Ins.  Co.  National  Compensation 
Journal,  Jan.  1914. 

Construction  of  the  word  "injury"  as  used 
in  the  Michigan  act,  as  covering  lead  poison- 
ing, would  not  render  the  act  unconstitu- 
tional. 

Compensation  is  to  be  allowed  for  in- 
juries, and  it  is  not  limited  to  accidental 
injuries. 

Barstow  v.  Smith,  Walk.  Ch.  (Mich.) 
394;  Leoni  Twp.  v.  Taylor,  20  Mich.  148; 
People  ex  rel.  Whipple  v.  Judge  of  Saginaw 
Circuit  Ct.  26  Mich.  342;  People  ex  rel. 
Parsons  v.  Circuit  Judge,  37  Mich.  287; 
Sibley  v.  Smith,  2  Mich.  486. 

Stone,  J.,  delivered  the  opinion  of  the 
court : 

The  questions  involved  in  this  case  are 
raised  on  certiorari  to  the  Industrial  Acci- 
dent Board.  On  December  18,  1912,  Au- 
gustus Adams,  a  resident  of  Sandwich,  On- 
tario, began  work  at  the  plant  of  the  Acme 
White  Lead  &  Color  Works  in  the  city  of 
Detroit.  His  duties  were  those  of  a  sifter 
or  bolter  tender  in  the  red  lead  plant.  His 
work  brought  him  in  contact  with  the  lead. 
On  May  29,  1913,  he  left  his  work  at  the 
quitting  time,  but  that  evening  became  so 
ill  that  he  was  unable  to  return  to  work 
again.  He  died  on  June  27,  1913.  There 
is  no  doubt  that  the  cause  of  his  death  was 
lead  poisoning,  contracted  industrially; 
i.  e.,  "was  an  occupational  disease,"  as  the 
return  of  the  Industrial  Accident  Board 
shows.  The  return  states:  "That  during 
said  period  between  December  18,  1912,  and 
June  27,  1913,  one  Augustus  Adams  was  in 
the  employ  of  the  Acme  White  Lead  &  Color 
Works;  .  .  .  and  that  during  said 
period,  while  in  the  course  of  said  employ- 
ment, he  contracted  an  occupational  disease, 
to  wit,  red  lead  poisoning,  upon  the  prem- 
ises of  the  said  company,  and  that,  on 
June  27,  1913,  he  died  as  a  result  of  said 
disease." 

The  claim  of  the  widow,  under  act  No.  10 
of  the  Public  Acts  of  the  Special  Session  of 
1912,  was  duly  presented  to  a  committee  of 
arbitration  and  allowed.  Thereafter,  in  ac- 
cordance with  the  provisions  of  said  act,  the 
respondent  filed  with  the  said  Board  a  claim 
for  review  of  the  decision  of  said  committee 
on  arbitration,  and  later,  after  a  full  hear- 
ing, the  said  Board  made  and  entered  an 
opinion  and  order  denying  the  contention  of 
the  respondent,  and  affirming  the  award  of 
L.R.A.191GA. 


said  arbitration  committee.  The  opinion  of 
the  said  Board,  upon  which  its  order  was 
based,  so  fully  presents  the  questions  in- 
volved that  we  cannot  do  better  than  to- 
quote  therefrom.  After  referring  to  the 
facts  above  set  forth,  it  is  said:  "These 
facts  are  undisputed,  and  the  sole  ques- 
tion in  the  case  is  whether  the  workmen's 
compensation  act  covers  the  case  of  death 
by  lead  poisoning  arising  out  of  and  in  the 
course  of  the  employment.  It  is  contended 
on  behalf  of  respondent  as  follows :  ( 1 )  That 
lead  poisoning  is  not  an  accident;  (2)  that 
act  No.  10,  Public  Acts  of  1912,  was  not  in- 
tended to  provide  compensation  for  diseases, 
but  only  accidents;  (3)  if  the  act  does  ap- 
ply to  industrial  diseases,  it  is  so  far  un- 
constitutional. It  seems  to  be  established 
under  the  English  cases  that  lead  poison- 
ing is  not  an  accident.  It  is  an  occupation- 
al disease.  It  seems  to  follow  from  this 
that,  unless  the  Michigan  workmen's  com- 
pensation law  is  broad  enough  to  include 
and  cover  occupational  diseases,  the  appli- 
cant's claim  in  this  case  must  be  denied. 
The  controlling  provision  of  the  act  on  this 
point  is  found  in  §  1  of  part  2,  and  is  as 
follows:  'If  an  employee  .  .  .  receives 
a  personal  injury  arising  out  of  and  in 
the  course  of  his  employment,  he  shall  be 
paid  compensation,  etc.  It  will  be  noted 
that  the  above  language  does  not  limit  the 
right  of  compensation  to  such  persons  as 
receive  personal  injuries  by  accident.  The 
language  in  this  respect  is  broader  than  the 
English  act,  and  clearly  includes  all  person- 
al injuries  arising  out  of  and  in  the  course 
of  the  employment,  whether  the  same  are 
caused  'by  accident'  or  otherwise.  It  is 
equally  plain  that  lead  poisoning  in  this 
case,  in  fact,  constitutes  a  personal  injury, 
and  that  such  personal  injury  was  of  seri- 
ous and  deadly  character.  The  Board  is 
therefore  of  the  opinion  that  the  section  of 
the  Michigan  act  is  broad  enough  to  cover 
cases  of  lead  poisoning,  especially  the  one 
in  question. 

The  Board  also  reached  the  conclusion 
that  it  would  not  be  justified  in  holding 
the  part  of  the  act  referred  to  invalid  on 
constitutional  grounds. 

By  the  assignments  of  error,  it  is  claimed 
that  the  Board  erred:  First,  in  construing 
the  said  act  so  as  to  provide  for  the  award- 
ing of  compensation  for  an  occupational 
disease,  specifically  red  lead  poisoning; 
second,  in  overruling  appellant's  contention 
that,  if  in  said  act  the  legislature  intended 
to  provide  compensation  for  an  occupation- 
al disease,  particularly  red  lead  poisoning, 
said  act,  in  so  far  as  it  does  so  provide, 
is  unconstitutional. 

1.  Does    the    Michigan    act    include    and 
'cover    occupational    diseases?      This    is    a 


ADAMS  v.  ACME  WHITE  LEAD  &  C.  WORKS. 


285 


lair  question,  and  should  be  fairly  answered.  I 
What  is  an  "occupation,"  or  "occupational 
•disease?"  The  Century  Dictionary  &  Cyclo- 
pedia defines  an  "occupation  disease"  as  "a 
•disease  arising  from  causes  incident  to  the 
patient's  occupation,  as  lead  poisoning 
among  painters."  In  the  instant  case  the 
undisputed  medical  evidence  shows  that  lead 
poisoning  does  not  arise  suddenly,  but  comes 
only  after  long  exposure.  "It  is  a  matter 
of  weeks  or  months  or  years."  It  is 
brought  about  by  inhalation,  or  by  the  lead 
coming  into  the  system  with  food  through 
the  alimentary  canal,  or  by  absorption 
through  the  skin.  In  any  case  it  is  not  the 
result  of  one  contact  or  a  single  event.  "In 
occupational  diseases  it  is  drop  by  drop, 
it  is  little  by  little,  day  after  day  for  weeks 
and  months,  and  finally  enough  is  accumu- 
lated to  produce  symptoms."  It  also  ap- 
pears that  lead  poisoning  is  always  preva- 
lent in  the  industries  in  which  lead  is  used, 
and  a  certain  percentage  of  the  workmen 
exposed  to  it  become  afflicted  with  the  dis- 
ease. Elaborate  precautions  are  taken 
against  it  in  the  way  of  instructions  to 
the  men,  masks  to  protect  the  respiratory 
organs,  etc.  Whether  the  workmen  will 
contract  it  or  not  will  depend  upon  the 
physical  condition,  care,  and  peculiarity  of 
the  individual;  and  the  amount  of  time  it 
will  take  to  produce  ill  effects  or  death 
also  varies. 

An  "accident"  is  defined  in  Black's  Law 
Dictionary  as  follows:  "Accident.  An  un- 
foreseen event,  occurring  without  the  will 
or  design  of  the  person  whose  mere  act 
causes  it;  an  unexpected,  unusual,  or  un- 
designed occurrence;  the  effect  of  an  un- 
known cause,  or,  the  cause  being  known,  an 
unprecedented  consequence  of  it;  a  casual- 
ty." 

It  might  be  well  to  keep  in  mind  the 
conditions  sought  to  be  remedied  by  the 
diverse  workmen's  compensation  enactments 
which  have  been  adopted  by  several  of  the 
states  of  the  Union  and  in  foreign  coun- 
tries. The  paramount  object  has  been  for 
the  enactment  of  what  has  been  claimed  to 
be  more  just  and  humane  laws  to  take  the 
place  of  the  common-law  remedy  for  the 
compensation  of  workmen  for  accidental  in- 
juries received  in  the  course  of  their  em- 
ployment, by  the  taking  away  and  removal 
of  certain  defenses  in  that  class  of  cases. 

In  this  our  own  act  is  not  an  exception. 
It  first  provides  that  in  any  action  to  re- 
cover damages  for  personal  injury  sustained 
by  an  employee  in  the  course  of  his  employ- 
ment, or  for  death  resulting  from  personal 
injuries  so  sustained,  it  shall  not  be  a 
defense:  (a)  That  the  employee  was  neg- 
ligent, unless  and  except  it  shall  appear 
that  such  negligence  was  wilful;  (b)  that 
L.R.A.1916A. 


the  injury  was  caused  by  the 'negligence  of 
a  fellow  employee;  (c)  that  the  employee 
had  assumed  the  risks  inherent  in  or  in- 
cidental to  or  arising  out  of  his  employ- 
ment, or  arising  from  the  failure  of  the 
employer  to  provide  and  maintain  safe 
premises  and  suitable  appliances. 

It  is  then  enacted  that  the  above  provi- 
sions shall  not  apply  to  actions  to  recover 
damages  for  the  death  of,  or  for  personal 
injuries  sustained  by,  employees  of  any  em- 
ployer who  has  elected,  with  the  approval 
of  the  Industrial  Accident  Board  therein- 
after created,  to  pay  compensation  in  the 
manner  and  to  the  extent  thereinafter  pro- 
vided. Manifestly,  the  terms  "personal  in- 
jury" and  "personal  injuries,"  above  men- 
tioned, refer  to  common-law  conditions  and 
liabilities,  and  to  not  refer  to  and  include 
occupational  diseases,  because  an  employee 
had  no  right  of  action  for  injury  or  death 
due  to  occupational  diseases  at  common  law, 
but,  generally  speaking,  only  accidents,  or, 
rather,  accidental  injuries,  gave  a  right  of 
action.  WTe  are  not  able  to  find  a  single 
case  where  an  employee  has  recovered  com- 
pensation for  an  occupational  disease  at 
common  law.  Certainly  it  can  be  said  that 
in  this  state  no  employer  has  ever  been  held 
liable  to  the  employee  for  injury  from  an 
occupational  disease,  but  only  for  injuries 
caused  by  negligence.  It  seems  to  us  that 
the  whole  scheme  of  this  act  negatives  any 
liability  of  the  employer  for  injury  result- 
ing from  an  occupational  disease.  The  title 
of  the  act  is  significant:  "An  Act  to  Pro- 
mote the  Welfare  of  the  People  of  This 
State,  Relating  to  the  Liability  of  Employ- 
ers For  Injuries  or  Death  Sustained  by 
Their  Employees,  Providing  Compensation 
for  the  Accidental  Injury  to,  or  Death  of 
Employees,  and  Methods  for  the  Payment 
of  the  Same,  Establishing  an  Industrial 
Accident  Board,  Defining  Its  Powers,  Pro- 
viding for  a  Review  of  Its  Awards,  Making 
an  Appropriation  to  Carry  Out  the  Pro- 
visions of  This  Act,  and  Restricting  the 
Right  to  Compensation  or  Damages  in  Such 
Cases  to  Such  as  Are  Provided  by  This 
Act." 

The  first  provision  defining  the  employers 
who  are  subject  to  the  act  is  found  in  §  5, 
subdiv.  2,  of  part  1.  It  reads:  "Every 
person,  firm  and  private  corporation,  in- 
cluding any  public  service  corporation,  who 
has  any  person  in  service  under  any  con- 
tract of  hire,  express  or  implied,  oral  or 
written,  and  who,  at  or  prior  to  the  time 
of  the  accident  to  the  employee  for  which 
compensation  under  this  act  may  be  claimed, 
shall  in  the  manner  provided  in  the  next 
section  have  elected  to  become  subject  to 
the  provisions  of  this  act,  and  who  shall  not, 
prior  to  such  accident,  have  effected  a  with- 


286 


WORKMEN'S  COMPENSATION. 


drawal  of  suck  election,  in  the  manner  pro- 
vided in  the  next  section." 

While  not  controlling,  it  is  pertinent  to 
note  the  history  of  the  Michigan  act. 

By  act  No.  245,  Public  Acts  of  1911,  the 
legislature  created  a  commission  "to  make 
the  necessary  investigation,  and  to  prepare 
and  submit  a  report  .  .  .  setting  forth 
a  comprehensive  plan,  and  recommending 
legislative  action,  providing  compensation 
for  accidental  injuries  or  death  of  work- 
men arising  out  of  and  in  the  course  of  em- 
ployment." 

Section  2  of  the  act  reads:  "It  shall  be 
the  duty  of  the  Commission  of  Inquiry  to 
fully  investigate  the  conditions  affecting 
and  the  problems  involved  in  the  matter  of 
compensation  for  accidental  injuries  or 
death  of  workmen  arising  out  of  and  in 
the  course  of  employments." 

The  act  drawn  pursuant  to  this  author- 
ity was  passed  by  the  legislature  without 
change.  While  it  cannot  be  claimed  that 
the  power  of  the  legislature  was  limited  to 
enacting  the  bill  prepared  by  the  Commis- 
sion, yet,  when  that  body  passed  the  bill 
without  change,  it  may  be  said  that  it 
adopted  the  meaning  that  must  have  been 
intended  by  the  Commission. 

It  is  the  claim  of  appellant  that  lead  poi- 
soning contracted  industrially  is  not  an 
accident;  that  such  poisoning,  being  some- 
thing that  is  contracted  by  a  fairly  certain 
percentage  of  those  working  in  industries 
where  lead  is  used,  cannot  be  considered  as 
unexpected;  that  it  comes  as  a  gradual, 
slow  process,  and  hence  is  not  an  "accident." 
The  appellee,  agreeing  with  the  reasoning 
of  the  Board,  contends  that  the  act  does 
cover  injuries  occasioned  by  lead  poisoning, 
and  that  such  poisoning  contracted  in  the 
course  of  employment  is  an  "accidental  in- 
jury." 

The  English  act  of  1897  was  entitled: 
"An  Act  to  Amend  the  Law  with  Respect 
to  Compensation  to  Workmen  for  Accidental 
Injuries  Suffered  in  the  Course  of  Their 
Employment." 

The  body  of  the  act  provided  that  "if  in 
any  employment,  to  which  this  act  applies 
personal  injury  by  accident  arising  out  of 
and  in  the  course  of  the  employment,  is 
caused  to  a  workman,  his  employer  shall 
.  .  .  be  liable." 

It  was  not  long  before  it  was  necessary 
to  determine  what  was  personal  injury  by 
accident,  and  to  give  a  definition  of  "acci- 
dent." In  Mensey  v.  White  [1900]  1  Q.  B. 
483,  the  language  of  an  earlier  case  was  ap- 
proved where  it  was  said:  "I  think  the  idea 
of  something  fortuitous  and  unexpected  is 
involved  in  both  words  'peril'  or  'accident.'  " 

In  Fenton  v.  Thorley,  72  L.  J.  K.  B. 
N.  S.  790,  it  was  said:  "The  expression 
L.R.A.1936A. 


'accident'  is  used  in  the  popular  and  ordi- 
nary sense  of  the  word  as  denoting  an  un- 
looked-for mishap  or  an  untoward  event 
which  is  not  expected  or  designed." 

Finally,  in  Steel  v.  Cammell  [1905]  2 
K.  B.  232,  2  Ann.  Cas.  142,  the  precise 
point  was  decided.  The  applicant,  a  caulk- 
er in  the  employment  of  shipbuilders,  vvaa 
seized  with  paralysis  caused  by  lead  poison- 
ing, and  became  totally  incapacitated  for 
work.  In  the  course  of  his  work,  in  which 
he  had  been  employed  by  the  shipbuilders 
for  a  period  of  two  years  before  he  became 
incapacitated,  he  had  to  smear  either  with 
red  or  white  lead  certain  places  between 
the  plates  of  ships  into  which  water-tight 
shoes  were  put.  The  poisoning  was  such 
as  might  be  expected  from  the  nature  of 
the  work.  It  might  be  caused  either  by  in- 
halation, or  by  eating  food  without  having 
removed  the  lead  from  the  hands,  or  by  ab- 
sorption through  the  skin.  Only  a  small 
proportion  of  cases  of  poisoning  of  this 
description  occurred  amongst  a  number  of 
persons  working  with  red  or  white  lead. 
The  poisoning  could  not  be  traced  to  any 
particular  day,  and  its  development  was  a 
gradual  process,  and  generally  took  con- 
siderable time.  Held,  that  the  lead  poison- 
ing could  not  be  described  as  an  "accident," 
in  the  popular  and  ordinary  use  of  that 
word,  so  as  to  entitle  the  applicant  to  com- 
pensation for  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  his 
employment,  within  the  meaning  of  §  1  of 
the  workmen's  compensation  act  of  1897. 
Fenton  v.  Thorley  [1903]  A.  C.  443,  72 
L.  J.  K.  B.  N.  S.  787,  52  Week.  Rep.  81, 
89  L.  T.  N.  S.  314,  19  Times  L.  R.  684, 
and  Brinton  v.  Turvey,  [1905]  A.  C.  230, 
74  L.  J.  K.  B.  N.  S.  474,  53  Week.  Rep. 
641,  92  L.  T.  N.  S.  578,  21  Times  L.  R. 
444,  7  W.  C.  C.  1,  2  Ann.  Cas.  137,  con- 
sidered. 

The  court  in  the  above  case  [Steel  v. 
Cammell]  reasoned  that  under  the  act  a 
date  must  be  fixed  as  that  on  which  the 
injury  by  accident  occurred,  and  it  was 
said:  "It  has  ben  suggested  that  there 
was  a  series  of  accidents  by  the  continu- 
ous absorption  of  lead  by  one  or  other  of 
the  three  processes  named;  but  this  sugges- 
tion does  not  meet  the  difficulty  which  arises 
from  the  provisions  of  the  act  as  to  notice 
of  the  particular  date  of  the  accident  or 
injury." 

Others  of  the  judges  said  that  the  injury 
was  not  unexpected;  that  it  was  certain 
that  somebody  would  suffer,  and  this  man 
turned  out  to  be  susceptible  to  the  poison. 
As  a  result  of  this  case,  it  was  found 
necessary  to  change  the  act,  if  cases  like 
this  were  to  be  included;  so  in  1906,  less 
than  a  year  later,  the  act  of  6  Edw.  VII. 


ADAMS  v.  ACME  WHITE  LEAD  &  C.  WORKS. 


287 


chap.  58,  was  passed,  entitled:  "An  Act 
to  Consolidate  and  Amend  the  Law  with 
Respect  to  Compensation  to  Workmen  for 
Injuries  Suffered  in  the  Course  of  Their 
Employment." 

The  body  of  the  act  again  provides  com- 
pensation for  "personal  injury  by  accident," 
but  it  also  (§8)  provides  that  "where  the 
disease  is  due  to  the  nature  of  any  employ- 
ment .  .  .  he  or  his  dependents  shall  be 
entitled  to  compensation  under  this  act  as 
if  the  disease  .  .  .  were  a  personal  in- 
jury by  accident,  arising  out  of  and  in  the 
course  of  that  employment,"  if  it  be  one  of 
the  diseases  contained  in  schedule  3  of  the 
act. 

In  that  schedule  "lead  poisoning"  and  its 
sequelae  are  therein  scheduled.  Of  this  act 
the  Encyclopedia  of  Laws  of  England,  vol. 
5,  p.  227,  states:  "The  extension  by  this 
act  of  the  principle  of  workmen's  compen- 
sation to  industrial  disease  is  a  new  de- 
parture. Disease,  though  contracted  acci- 
dentally, is  not  an  accident  in  the  ordinary 
acceptation  of  the  term." 

It  was  also  said  of  the  act  that  a  new 
phase  in  workmen's  compensation — compen- 
sation for  disease  arising  out  of  employ- 
ment— was  a  new  feature  in  this  type  of 
legislation.  The  language  of  the  act 
should  be  particularly  noted.  It  does  not 
attempt  to  declare  an  industrial  disease  an 
"accident,"  but  gives  compensation  there- 
for "as  if  the  disease  .  .  .  were  a  per- 
sonal injury  by  accident." 

Considering  the  condition  to  be  remedied 
and  the  history  of  the  Michigan  act,  and 
comparing  it  with  the  English  act  of  1897, 
we  are  not  able  to  agree  with  the  Accident 
Board  when  it  says,  referring  to  the  lan- 
guage which  it  quotes,  that  our  act  is 
broader  than  the  English  act,  and  clearly 
includes  all  personal  injuries  arising  out 
of  and  in  the  course  of  an  employment, 
whether  the  same  are  caused  by  "accident" 
or  otherwise.  In  the  language  quoted  by 
the  Board  it  is  true  that  the  words  "per- 
sonal injury"  are  used,  but  in  determining 
the  nature  of  the  personal  injury  intended 
to  be  covered  by  the  act,  the  whole  act, 
with  its  title,  should  be  examined  and  con- 
sidered; and,  so  examined,  we  think  it 
should  be  held  that  the  words  "personal  in- 
jury," as  quoted  by  the  Board,  refer  to  the 
kind  of  injury  included  in  the  title  and 
other  portions  of  the  act,  which  plainly  re- 
fer to  "accidental  injury  to  and  death  of 
employees."  The  whole  scope  and  purpose 
of  the  statute,  in  our  judgment,  were  to 
provide  compensation  for  "accidental  in- 
juries," as  distinguished  from  "occupation- 
al diseases."  We  must  hold,  therefore,  that 
the  provisions  of  the  act  of  this  state  are 
L.R.A.1916A. 


very  similar  to  the  early  English  act  above 
referred  to. 

We  have  shown  how  the  English  act  was 
subsequently  amended,  by  adding  the  provi- 
sion permitting  the  recovery  of  compensa- 
tion for  certain  scheduled  diseases  caused 
by,  or  especially  incident  to,  particular  em- 
ployments,— diseases  known  as  occupation 
or  industrial  diseases.  Not  before,  but  since, 
the  passage  of  this  amendment  to  the  Eng- 
lish act,  the  English  courts  have  sustained 
the  rights  of  recovery  in  such  cases  as  are 
here  presented.  The  framers  of  our  act 
either  did  not  know  of  the  amendment  to 
the  English  act,  or  else  they  did  not  intend 
to  permit  the  recovery  of  compensation  in 
such  cases.  If  it  is  said  that  it  is  just  as 
important  to  protect  employees  against  such 
conditions  as  are  here  presented  as  it  is  to 
protect  them  against  injuries  arising  from 
what  are  strictly  termed  "accidents,"  our 
answer  is  that  that  is  a  matter  which 
should  be  addressed  to  the  legislature.  In 
the  absence  of  a  provision  in  the  statute 
meeting  this  situation,  the  court  is  unable 
to  award  a  recovery. 

Counsel  for  appellee  have  referred  to  some 
of  the  English  cases  where  compensation 
was  allowed  for  injuries  caused  by  poison- 
ing, but  an  examination  of  those  cases  will 
show  that  the  injuries  were  purely  acci- 
dental. Higgins  v.  Campbell  [1904]  1  K. 
B.  328,  affirmed  in  [1905]  A.  C.  230,  is  a 
fair  illustration  of  those  cases.  There  a 
workman  employed  in  a  wool-combing  fac- 
tory in  which  there  was  wool  which  had  been 
taken  from  sheep  infected  with  anthrax 
contracted  that  disease  by  contact  with  the 
anthrax  bacillus  which  was  present  in  the 
wool.  In  that  case  compensation  was  al- 
lowed, and  it  was  held  that  the  workman 
was  injured  by  accident  arising  out  of  and 
in  the  course  of  his  employment  within  the 
meaning  of  the  English  act  of  1897.  The 
court  treated  the  disease  as  caused  by  an 
accident,  by  one  particular  germ  striking 
the  eyeball.  It  was  considered  that  the  acci- 
dental alighting  of  the  bacillus  from  the  in- 
fected wool  on  the  eyeball  caused  the  in- 
jury. It  was  treated  as  if  a  spark  from  an 
anvil  hit  the  eye.  This  may  be  seen  from 
the  statement  of  Lord  Macnaghten:  "It 
was  an  accident  that  the  thing  struck  the 
man  on  a  delicate  and  tender  spot  in  the 
corner  of  his  eye." 

We  think  that  this  and  kindred  cases  can 
be  readily  distinguished  from  the  lead  poi- 
soning cases. 

The  same  difficulty  about  giving  notice  of 
the  accident  or  injury  noted  in  the  English 
act  applies  to  the  Michigan  act.  Every  em- 
ployer is  required  to  keep  a  record  of  all  in- 
juries, fatal  or  otherwise,  received  by  em- 
ployees in  the  course  of  their  employment. 


288 


WORKMEN'S  COMPENSATION. 


Section  17  of  part  3  of  our  statute  provides 
that  "within  ten  days  after  the  occurrence 
of  the  accident  resulting  in  personal  injury 
a  report  thereof  shall  be  made  in  writing 
to  the  Industrial  Accident  Board  on  blanks 
to  be  procured  from  the  Board  for  that  pur- 
pose." 

And  a  penalty  is  prescribed  for  neglect 
to  make  such  report. 

In  the  instant  case  Adams  left  his  place 
of  employment  at  the  usual  quitting  time 
on  May  29,  1913.  He  did  not  return.  What 
knowledge  his  employer  had  of  his  sickness 
does  not  appear.  It  is  not  apparent  what 
notice  could  be  given  under  our  statute  in 
such  a  case.  If  our  statute,  in  its  present 
form,  should  be  held  to  apply  to  occupation- 
al or  industrial  diseases,  then  compensation 
might  be  claimed  of  an  employer  where  the 
term  of  employment  had  been  for  a  brief 
period,  whereas  the  disease  may  have  been 
contracted  while  in  the  employment  of  a 
former  employer.  All  this  is  provided  for 
in  the  amendment  of  1906  in  the  English 
act,  where  provision  is  made  for  investi- 
gation and  apportionment  among  employers 
for  whom  the  employee  worked  during  the 
previous  year  "in  the  employment  to  the 
nature  of  which  the  disease  was  due." 
There  is  no  such  machinery  or  procedure 
provided  for  in  our  statute. 

We  are  not  unmindful  of  the  holdings 
of  the  supreme  court  of  Massachusetts  in 
Hurle's  Case,  217  Mass.  223,  ante,  279,  104 
N.  E.  336,  Ann.  Cas.  1915C,  919,  4  N.  C. 
C.  A.  527,  and  Johnson's  Case,  217  Mass. 
388,  104  N.  E.  735,  4  N.  C.  C.  A.  843.  In 
the  latter  case  that  court  held  that  the 
personal  injury  of  a  lead  grinder,  sickness 
incapacitating  him  from  work  resulting 
from  the  accumulated  effect  of  gradual  ab- 
sorption of  lead  into  his  system,  arose  "out 
of  and  in  the  course  of  his  employment" 
within  the  workmen's  compensation  act 
(Stat.  1911,  chap.  751)  of  that  state.  That 
case  is  founded  upon  Re  Hurle,  supra,  which 
was  a  case  of  blindness  incurred  from  an 
acute  attack  of  optic  neuritis,  induced  by 
the  poisonous  coal  tar  gases  escaping  from 
a  furnace  about  which  he  was  required  to 
work.  The  matter  of  accidental  injury  was 
not  discussed  by  the  court.  The  court  said: 
"The  question  to  be  decided  is  whether  this 
was  a  'personal  injury  arising  out  of  and 
in  the  course  of  his  employment'  within 
the  meaning  of  those  words  in  [the  stat- 
ute]." 

The  court  further,  in  referring  to  the  com- 
ments of  counsel  for  the  employer  that  the 
act  could  not  apply  to  such  an  injury  as 
that  sustained,  said:  "It  might  be  decisive 
if  'accident'  had  been  the  statutory  word. 
It  is  true  that  in  interpreting  a  statute 
words  should  be  construed  in  their  ordinary 
L.R.A.1916A. 


sense.  Injury,  however,  is  usually  employed 
as  an  inclusive  word.  The  fact  remains 
that  the  word  'injury,''  and  not  'accident,' 
was  employed  by  the  legislature  through- 
out this  act." 

As  "accident"  is  the  controlling  word  in 
our  act,  we  do  not  think  that  the  Massachu- 
setts decisions  should  be  held  to  apply  here, 
as  the  construction  of  that  act  has  little, 
if  any,  bearing  on  the  Michigan  act. 

Our  attention  has  been  called  to  the  Mas- 
sachusetts act,  which  differs  in  many  re- 
spects from  our  act.  That  act  is  entitled : 
"An  Act  Relative  to  Payments  to  Employees 
for  Personal  Injuries  Received  in  the  Course 
of  Their  Employment,  and  to  the  Prevention 
of  Such  Injuries." 

The  whole  scope  of  the  act  seems  to  be 
to  provide  for  compensation  for  personal  in- 
juries received  in  the  course  of  employment. 
In  many  instances  where  the  word  "acci- 
dent" occurs  in  our  statute  the  word  "in- 
jury" is  used  in  the  Massachusetts  statute. 
It  is  true  that  the  Massachusetts  Board  is 
termed  an  "Industrial  Accident  Board," 
but,  aside  from  the  use  of  the  word  "acci- 
dent" in  that  title,  we  are  unable  to  find 
the  word  in  the  body  of  the  act,  except  in 
two  instances  in  §  18  of  part  3,  which  pro- 
vides for  the  keeping  of  a  record  and  mak- 
ing a  report  of  the  employer  in  case  of 
accident.  This  may  be  said  not  to  be  very 
controlling;  but,  in  our  judgment,  it  has 
to  do  with  the  inquiry  as  to  the  scope  of 
the  act.  We  are  unable  to  follow  those 
cases  as  authority  under  our  statute. 

In  New  Jersey,  in  the  case  of  Hichens  v. 
Magnus  Metal  Co.  35  N.  J.  L.  J.  327,  which 
arose  under  the  New  Jersey  act  (P.  L.  1911, 
p.  134),  entitled  very  similarly  to  the 
Massachusetts  act,  to  wit,  "An  Act  Pre- 
scribing the  Liability  of  an  Employer  to 
Make  Compensation  for  Injuries  Received 
by  an  Employee  in  the  Course  of  Employ- 
ment, Establishing  an  Elective  Schedule  of 
Compensation,  and  Regulating  Procedure 
for  the  Determination  of  Liability  and  Com- 
pensation Thereunder,"  it  was  held  that 
compensation  could  not  be  awarded  for  a 
disease  known  as  copper  poisoning,  caused 
by  contact  with  the  copper  filings  and  in- 
haling the  dust  from  same  by  an  employee 
in  his  work,  which  involved  the  grinding 
and  polishing  of  brass  products.  This  de- 
cision cannot  be  considered  as  authoritative, 
as  it  is  that  of  the  court  of  common  pleas, 
and  not  the  court  of  last  resort. 

The  Federal  compensation  act  (act  May 
30,  1908,  chap.  236,  35  Stat.  at  L.  556, 
Comp.  Stat.  1913,  §  8923),  relating  to  gov- 
ernment employees,  does  not  contain  the 
word  "accident"  in  the  principal  clause,  but 
provides  that  compensation  shall  be  grant- 
ed "if  the  employee  is  injured  in  the  course 


ADAMS  v.  ACME  WHITE  LEAD  &  C.  WORKS. 


289 


of  such  employment."  Subsidiary  clauses 
provide  for  the  reporting  of  "accidents," 
and  otherwise  refer  to  "accidental  injuries." 

In  the  latest  opinion  of  the  attorney  gen- 
eral, being  in  the  case  of  John  Sheeran, 
where  the  employee  was  a  laborer  engaged 
in  river  and  harbor  construction,  and,  while 
engaged  in  work  in  the  course  of  his  em- 
ployment, contracted  a  severe  cold  which 
resulted  in  pneumonia,  that  officer  said: 
"There  is  nothing  either  in  the  language 
of  the  act  or  in  its  legislative  history  which 
justifies  the  view  that  the  statute  was  in- 
tended to  cover  disease  contracted  in  the 
course  of  employment,  although  directly  at- 
tributable to  the  conditions  thereof.  On  the 
contrary,  it  appears  that  the  statute  was  in- 
tended to  apply  to  injuries  of  an  accident- 
al nature  resulting  from  employment  in 
hazardous  occupations,  not  to  the  effects  of 
the  disease." 

It  has  been  reiterated  under  the  Federal 
act  that  acute  lead  poisoning  is  not  such  an 
injury  as  entitles  an  employee  to  compen- 
sation. Similarly,  where  a  workman  suf- 
fered from  cystitis  and  prostatitis,  which 
he  claimed  was  the  result  of  overwork,  it 
was  held  that  he  was  merely  suffering  from 
disease,  which  was  not  covered  by  the  terms 
of  the  Federal  act,  and  compensation  was 
refused.  ]  Bradbury,  Workmen's  Compensa- 
tion, 2d  ed.  pp.  342,  343. 

\Ve  are  of  opinion  that  in  the  Michigan 
act  it  was  not  the  intention  of  the  legisla- 
ture to  provide  compensation  for  industrial 
or  occupational  diseases,  but  for  injuries 
arising  from  accidents  alone. 

2.  If  it  were  to  be  held  that  the  act  was 


intended  to  apply  to  such  diseases,  it  would, 
in  so  far  as  it  does  so,  be  unconstitutional 
and  in  violation  of  §  21  of  article  5  of  the 
Constitution  of  this  state,  which  provides 
that  "no  law  shall  embrace  more  than  one 
object,  which  shall  be  expressed  in  its  title." 

That  the  act,  if  it  were  held  to  apply  to 
and  cover  occupational  diseases,  is  uncon- 
stitutional in  so  far  as  it  does  so,  is  shown 
by  the  fact  that  the  body  of  the  act  would 
then  have  greater  breadth  than  is  indicated 
in  the  title.  A  careful  analysis  of  the  title 
of  the  act  shows  that  the  controlling  words 
are,  "providing  compensation  for  accidental 
injury  to  or  death  of  employees."  No  com- 
pensation is  contemplated  except  for  such 
injuries.  The  prefatory  words  are  generally 
dependent  upon  the  above-quoted  clause. 
The  only  compensation  provided  is  for  "ac- 
cidental injury  to  or  death  of  employees," 
and  the  last  clause  of  the  title  restricts 
the  right  to  compensation  or  damages  in 
such  cases,  "to  such  as  are  provided  by  this 
act." 

The  Massachusetts  decisions  have  no  bear- 
ing upon  this  branch  of  the  case  for  two 
reasons:  One  is  that  the  titles  of  the  re- 
spective acts  differ  materially;  and  the 
other  reason  is  that  Massachusetts  has  no 
such  constitutional  provisions  as  ours  above 
quoted.  We  have  dealt  with  this  question 
of  title  too  recently  to  make  it  necessary 
to  refer  to  our  numerous  decisions  upon  the 
subject. 

For  the  reasons  above  given,  we  are  con- 
strained to  reverse  the  order  and  judgment 
of  the  Industrial  Accident  Board. 


Annotation — Recovery    of    compensation    for    incapacity    resulting   from 

disease. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

Whether  or  not  a  disease  is  an  "acci- 
dent" or  an  "injury,"  within  the  mean- 
ing of  the  compensation  act,  is  a 
question  which  has  caused  the  courts  con- 
siderable trouble.  Compensation  has 
been  sought  for  diseases  suffered  inde- 
pendently of  any  injury  by  accident, 
and  for  diseases  suffered  in  connection 
with  such  an  injury. 

The  diseases  suffered  independently  of 
any  accident  may  be  divided  roughly  into 
two  classes:  first,  the  so-called  "indus- 
trial" or  "occupational"  diseases,  which 
are  the  natural  and  reasonably  to  be 
anticipated  result  of  a  workman's  fol- 
lowing a  certain  occupation  for  a  con- 
siderable period  of  time,  as,  for  example, 
lead  poisoning;  second,  diseases  which  1 
L.R.A.1916A.  19 


are  the  result  of  some  unusual  condition 
of  the  employment,  as,  for  example, 
pneumonia  following  an  enforced  ex- 
posure. 

Likewise,  diseases  suffered  in  connec- 
tion with  an  injury  by  accident  may  be 
divided  into  two  classes:  first,  diseases 
which  supervene  after  the  injury,  and 
are  either  the  direct  result  of  the  acci- 
dent or  increase  the  incapacity  caused 
by  it;  second,  diseases  existing  at  tho 
time  of  the  injury. 

The  cases  in  which  compensation  has 
been  sought  where  the  workman  suffers 
from  a  disease  are  grouped  below  accord- 
ing to  the  distinction  indicated. 

"Occupational"    or    "industrial"     dis- 
eases. 

Section  8  and  the  third  schedule  of 
the  English  act  of  1906  expressly  provide 


290 


WORKMEN'S  COMPENSATION. 


for  compensation  for  incapacity  result- 
ing from  occupational  diseases;  but, 
aside  from  these  statutory  provisions, 
the  decisions  under  the  English  act  are 
unanimous  in  holding  that  an  occupa- 
tional disease  does  not  come  within  the 
statute. 

Various  provisions  of  the  statute, 
particularly  the  clause  requiring  notice 
of  the  accident  to  be  given  to  the  em- 
ployer within  a  specified  time,  have  been 
held  to  indicate  the  legislative  intention 
that  there  must  be  a  time  and  place  and 
circumstance  to  which  the  injury  can  be 
referred.  Eke  v.  Hart-Dyke  [1910]  2  K. 
B.  (Eng.)  677,  80  L.  J.  K.  B.  N.  S.  90, 
103  L.  T.  N.  S.  174,  26  Times  L.  R.  613, 
3  B.  W.  C.  C.  482,  3  N.  C.  C.  A.  230; 
Alloa  Coal  Co.  v.  Drylie  [1913]  W.  C.  & 
Ins.  Rep.  (Eng.)  213,  [1913]  S.  C.  549,  6 
B.  W.  C.  C.  398,  50  Scot.  L.  R.  350,  4 
N.  C.  C.  A.  899;  Petschett  v.  Preis 
(1915)  31  Times  L.  R.  (Eng.)  156,  [1915] 
W.  C.  &  Ins.  Rep.  11,  8  B.  W.  C.  C.  44; 
Martin  v.  Manchester  Corp.  [1912]  W.  C. 
Rep.  (Eng.)  289,  106  L.  T.  N.  S.  741,  76 
J.  P.  251,  28  Times  L.  R.  344,  [1912]  W. 
N.  105,  5  B.  W.  C.  C.  259  (disease  con- 
tracted by  a  hospital  nurse  or  attend- 
ant while  at  his  work  in  a  hospital  held 
not  to  be  an  accident). 

A  skin  disease  caused  by  the  work- 
man's hand  coming  in  direct  contact  with 
poisonous  substances  in  the  course  of 
the  employment  is  not  an  accident. 
Evans  v.  Dodd  [1912]  W.  C.  Rep.  (Eng.) 
149,  5  B.  W.  C.  C.  305  (eczematous 
sores  caused  by  working  over  carbon 
bisulphid) ;  Cheek  v.  Harmsworth  Bros. 
(1901;  C.  C.)  4  W.  C.  C.  (Eng.)  3  (der- 
matitis contracted  in  using  a  strong  solu- 
tion of  caustic  soda) ;  Petschett  v.  Preis 
(1915)  31  Times  L.  R.  (Eng.)  156,  [1915] 
W.  C.  &  Ins.  Rep.  11,  8  B.  W.  C.  C.  44 
(dermatitis  contracted  by  use  of  a  dry 
shampoo  by  barber's  assistant). 

Nor  is  a  rash  which  was  pronounced 
to  be  a  condition  of  eczema,  and  which 
might  have  been  caused  by  acids  used 
in  the  employer's  bleachery.  Liondale 
Bleach,  Dye  &  Paint  Works  v.  Riker,  85 
N.  J.  L.  426,  89  Atl.  929,  4  N.  C.  C.  A. 
713. 

Nor  is  ptomaine  poisoning,  contracted 
by  inhaling  sewer  gas  while  working 
around  cesspools.  Eke  v.  Hart-Dyke 
[1910]  2  K.  B.  (Eng.)  677,  80  L.  J.  K. 
B.  N.  S.  90,  103  L.  T.  N.  S.  174,  26 
Times  L.  R.  613,  3  B.  W.  C.  C.  482,  3 
N.  C.  C.  A.  230. 

Nor  is  typhoid  fever,  contracted  while 
handling  sewage.     Finlay  v.   Tullamore 
Union   (1914)   48  Ir.  Law  Times  110,  7 
B.  W.  C.  C.  973. 
L.R.A.1016A. 


Nor  is  enteritis,  contracted  by  inhaling 
sewer  gas  while  working  in  a  sewer. 
Broderick  v.  London  County  Council 
[1908]  2  K.  B.  (Eng.)  807,  77  L.  J.  K.  B. 
N.  S.  1127,  99  L.  T.  N.  S.  569,  24  Times 
L.  R.  822,  15  Ann.  Cas.  885. 

Lead  poisoning  is  not  an  "accident." 
Steel  v.  Cammell,  L.  &  Co.  [1905]  2  K. 

B.  (Eng.)  232,  74  L.  J.  K.  B.  N.  S.  610, 
53  'Week.  Rep.  612,  93  L.  T.  N.  S.  357, 
21  Times  L.  R.  490,  2  Ann.   Cas.  142; 
Williams  v.  Duncan  (1898;  C.  C.)  1  W. 

C.  C.  (Eng.)  123;  Adams  v.  Acme  White 
Lead  &  Color  Works,  ante,  283. 

But  lead  poisoning  has  been  held  to 
be  a  "personal  injury"  within  the  mean- 
ing of  the  Massachusetts  act.  Johnson's 
Case  (1914)  217  Mass.  388,  104  N.  E. 
735,  4  N.  C.  C.  A.  843. 

So,  blindness  because  of  optic  neuri- 
tis, due  to  poisonous  gases  from  a  fur- 
nace upon  which  the  injured  person  was 
obliged  to  work,  is  a  "personal  injury" 
within  the  meaning  of  the  Massachusetts 
act.  Re  Hurle,  ante,  279. 

—  breakdown  due  to  overwork. 

A  general  breakdown  from  continued 
overwork  is,  in  a  sense,  similar  to  an  oc- 
cupational disease,  since  the  progress  is 
gradual  and  the  result  is  the  natural  re- 
sult of  a  continuation  of  the  work. 

"Waste  overrunning  repair"  has  been 
said  not  to  be  an  "accident ;"  consequent- 
ly an  injury  in  the  nature  of  a  general 
breakdown  due  to  overwork  is  not  an 
accident  within  the  meaning  of  the  act. 
Walker  v.  Hockney  Bros.  (1909)  2  B. 
W.  C.  C.  (Eng.)  20  (partial  paralysis 
caused  by  continued  use  of  a  tricycle) ; 
Black  v.  New  Zealand  Shipping  Co. 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  480,  6 
B.  W.  C.  C.  720  (heart  failure  following 
a  continual  strain  of  overwork) ;  Paton 
v.  Dixon  [1913]  W.  C.  &  Ins.  Rep.  517, 
50  Scot.  L.  R.  866,  6  B.  W.  C.  C.  882, 
[1913]  S.  C.  1120  (incapacity  due  to  con- 
tinual strain) ;  Coe  v.  Fife  Coal  Co. 
[1909]  S.  C.  393,  46  Scot.  L.  R.  328 
(cardiac  breakdown). 

The  gradual  formation  of  abscesses 
caused  by  the  nature  of  the  employment 
and  the  position  which  the  workman  was 
obliged  to  take  to  perform  the  work  is 
not  an  accident.  Marshall  v.  East  Holy- 
well  Coal  Co.  (1905)  93  L.  T.  N.  S. 
(Eng.)  360,  21  Times  L.  R.  494. 
Disease  caused  by  unusual  conditions 

of  work. 

A  disease  contracted  as  a  direct  result 
of  unusual  circumstances  connected  with 
the  work,  and  not  as  an  ordinary  or  rea- 
sonably to  be  anticipated  result  of  pur- 
suing the  work,  is  to  be  considered  as  an 


INCAPACITY  FROM  DISEASE. 


291 


injury  caused  by  accident.  Kelly  v. 
Auchenlea  Coal  Co.  [1911]  S.  C.  864,  48 
Scot.  L.  R.  768,  4  B.  W.  C.  C.  417  (pneu- 
monia caused  by  inhalation  of  gas  gen- 
erated by  an  explosion) ;  Thompson  v. 
Ashington  Coal  Co.  (1901)  84  L.  T.  N.  S. 
(Eng.)  412,  17  Times  L.  R.  345,  84  L.  T. 
N.  S.  412  (blood  poisoning  caused  by 
piece  of  coal  which  had  worked  itself 
into  the  knee  of  the  workman). 

A  disease  which  results  from  an  en- 
forced exposure  while  the  workman  is 
acting  within  the  scope  of  his  employ- 
ment is  an  "accident."  Sheerin  v.  F.  &  J. 
Clayton  &  Co.  [1910]  2  L  R.  105,  44 
Ir.  Law  Times  23,  3  B.  W.  C.  C.  583  (in- 
flammation of  the  kidneys,  caused  by  be- 
ing obliged,  while  at  work,  to  stand  in 
water  for  a  fortnight) ;  Alloa  Coal  Co.  v. 
Dry  lie  [1913]  W.  C.  &  Ins.  Rep.  213,  6 
B.  W.  C.  C.  398,  [1913]  S.  C.  549,  50 
Scot.  L.  R.  350,  [1913]  1  Scot.  L.  T.  167, 
4  N.  C.  C.  A.  899  (pneumonia  contracted 
because  the  workman  was  obliged  to 
stand  in  icy  water  up  to  his  knees  for 
about  twenty-five  minutes) ;  Barbeary  v. 
Chugg  (1914)  W.  C.  &  Ins.  Rep.  (Eng.) 
84  L.  J.  K.  B.  N.  S.  504,  112  L.  T.  N.  S. 
797,  31  Times  L.  R.  153,  8  B.  W.  C.  C. 
37  (sciatica  contracted  by  a  pilot,  who, 
after  taking  a  ketch  out  of  a  harbor, 
jumped  into  his  boat  from  the  ketch, 
and,  in  so  doing,  upset  his  boat  and  got 
wet  to  the  thighs) ;  Coyle  v.  Watson 
[1915]  A.  C.  (Eng.)  1,  111  L.  T.  N.  S. 
347,  30  Times  L.  R.  501,  58  Sol.  Jo.  533, 
[1914]  W.  N.  195,  [1914]  W.  Ins.  &  C. 
Rep.  228,  7  B.  W.  C.  C.  259,  83  L.  J. 
P.  C.  N.-S.  307,  reversing  [1913]  S.  C. 
593,  50  Scot.  L.  R.  415,  [1913]  W.  C.  & 
Ins.  Rep.  223,  6  B.  W.  C.  C.  416. 

An  employee  who  inhales  damp  smoke 
and  is  drenched  with  water,  and,  as  a 
result,  contracts  lobar  pneumonia  and 
dies,  may  be  found  to  have  suffered  a 
"personal  injury"  within  the  meaning  of 
the  Massachusetts  act.  Re  McPhee 
(1915)  —  Mass.  — ,  109  N.  E.  633. 

Compensation  is  recoverable  for  inca- 
pacity from  exposure  to  which  an  injured 
workman  was  subjected  while  making 
his  way  home  in  his  injured  condi- 
tion. Ystradowen  Colliery  Co.  v.  Griff- 
iths [1909]  2  K.  B.  (Eng.)  533,  78  L.  J. 
K.  B.  N.  S.  1044,  100  L.  T.  N.  S.  869,  25 
Times  L.  R.  622. 

But  there  can  be  no  compensation  for 
incapacity  caused  by  a  chill  resulting 
from  a  voluntary  exposure.  McLuckie 
v.  Watson  [1913]  S.  C.  975,  50  Scot.  L. 
R.  770,  6  B.  W.  C.  C.  850. 

Pleurisy  following  a  chill  after  a  can- 
vasser and  collector  of  accounts  had  be- 
come overheated  in  climbing  three  flights 
L.R.A.IDIGA. 


of  stairs  has  been  held  by  the  Scotch 
court  of  session  not  to  be  an  accident; 
but  this  decision  is  clearly  against  the 
weight  of  authority.  McMillan  v.  Singer 
Sewing  Mach.  Co.  [1913]  S.  C.  346, 
[1913]  W.  C.  &  Ins.  Rep.  70,  50  Scot.  L. 
R.  220,  6  B.  W.  C.  C.  345,  [1912]  Scot. 
L.  T.  484.  A  similar  decision  by  the 
same  court  was  reversed  by  the  House  of 
Lords  in  Coyle  v.  Watson  (Eng.)  supra. 

Typhoid  fever  contracted  by  an  em- 
ployee in   drinking  contaminated  water 
furnished  to  him  by  his  employer  is  an 
accident  within  the  meaning  of  the  Wis- 
I  consin  act,  Vennen  v.  New  Dells  Lumber 
1  Co.  ante,  273. 

The  death  of  a  person  employed  to  cut 
grass  on  the  railroad  right  of  way  by 
infection  from  poison  ivy  is  accidental 
within  the  meaning  of  the  New  York 
statute.  Plass  v.  Central  New  England 
R.  Co.  (1915)  —  App.  Div.  — ,  155  N.  Y. 
Supp.  854. 

In  Lovelady  v.  Berrie  (1909)  2  B.  W. 
C.  C.  (Eng.)  62,  a  healthy  and  steady 
workman  was  employed  to  pick  up  cot- 
ton waste  about  the  decks  of  a  ship,  and 
during  the  employment  was  sent  to  work 
in  a  hold.  After  two  hours  he  came  up 
the  ladder  of  the  hold  apparently  ia 
great  pain,  and  the  foreman  sent  him 
home.  Upon  examination  there  appeared 
slight  marks  upon  his  ribs,  after  three- 
days  pneumonia  developed,  attributed 
by  the  attending  doctor  to  the  injury  to- 
his  side,  which  culminated  about  a  week 
thereafter,  in  his  death.  The  court  of  ap- 
peal held  that  the  death  was  caused  by  ac- 
cident arising  out  of  and  in  the  course  of 
his  employment,  although  hov  he  re- 
ceived the  injury  was  unknown;  or,  at 
least,  is  not  revealed  in  the  report  of  the. 
case. 
—  sunstroke  and  heat  prostration. 

Prostration  by  sunstroke  may  be  found" 
to  be  an  accident.  Morgan  v.  The  Ze- 
naida  (1909)  25  Times  L.  R,  (Eng.)  446, 
2  B.  W.  C.  C.  19;  Davies  v.  Gillespie 
(1911)  105  L.  T.  N.  S.  (Eng.)  494,  28 
Times  L.  R.  6,  56  Sol.  Jo.  11,  5  B.  W.  C. 
C.  64. 

So,  death  resulting  from  a  heat  stroke 
may  be  found  to  be  due  to  an  accident, 
Ismay  v.  Williamson  [1908]  A.  C.  (Eng.) 
437,  1  B.  W.  C.  C.  232,  77  L.  J.  P.  C. 
N.  S.  107,  99  L.  T.  N.  S.  595,  24  Times 
L.  R.  881,  52  Sol.  Jo.  713,  42  Ir.  Law 
Times  213;  Maskery  v.  Lancashire  Ship- 
ping Co.  (1914)  7  B.  W.  C.  C.  (Eng.) 
428. 

But  it  has  been  held  that  a  plumber 
whose  vitality  was  impaired,  and  who- 
was  engaged  on  a  hot  day  in  laying,  and! 


292 


WORKMEN'S  COMPENSATION. 


joining  pipes  in  a  trench,  and  suffered 
a  stroke  of  heat  apoplexy,  was  not  in- 
jured by  accident,  although  his  work  re- 
quired considerable  stooping.  Robson  v. 
Blakey  [1912]  S.  C.  334,  49  Scot.  L.  R. 
254,  [1912]  W.  C.  Rep.  86,  5  B.  W.  C.  C. 
536. 

So,  where,  upon  the  medical  evidence, 
the  arbitrator  finds  that  the  heat  apo- 
plexy from  which  a  ship's  stoker  was 
suffering  might  have  been  caused  by  the 
heat  of  the  sun  or  by  the  heat  of  the 
stoke  holes,  the  arbitrator  is  justified  in 
holding  that  the  evidence  will  not  permit 
him  to  draw  the  inference  that  the  injury 
was  caused  by  an  accident  arising  out 
of  and  in  the  course  of  the  employment. 
Olson  v.  The  Dorset  (1913)  6  B.  W.  C.  C. 
(Eng.)  658. 

Disease  supervening  after  injury. 

Although,  as  a  matter  of  fact,  some 
disease  is  the  immediate  cause  of  the 
death,  it  may  be  found  that  the  "death 
results  from  the  injury"  within  the 
meaning  of  the  English  act  where  the 
disease  supervened  after  the  accident,  or 
was  directly  caused  by  the  accident. 
Dunham  v.  Clare  [1902]  2  K.  B.  (Eng.) 
293,  71  L.  J.  K.  B.  N.  S.  683,  66  J.  P. 
612,  50  Week.  Rep.  596,  86  L.  T.  N.  S. 
751,  18  Times  L.  R.  645,  4  W.  C.  C.  102, 
(erysipelas  supervened  after  injury  to 
workman's  foot) ;  Mutter  v.  Thomson 
[1913]  W.  C.  &  Ins.  Rep.  241,  [1913]  S. 
C.  619,  50  Scot.  L.  R.  447,  6  B.  W.  C.  C. 
424  (workman  suffered  from  heart  fail- 
ure following  two  operations,  the  first  of 
which  was  performed  for  the  purpose 
of  curing  an  old  injury,  but  which  was 
necessary  in  order  that  the  second  opera- 
tion could  be  properly  performed) ;  Dun- 
nigan  v.  Cavan  [1911]  S.  C.  579,  48  Scot. 
L.  R.  459,  4  B.  W.  C.  C.  386  (pneumonia 
supervened  after  injury) ;  Butt  v.  Gelly- 
ceidrim  Colliery  Co.  (1909)  3  B.  W.  C. 
C.  (Eng.)  44  (epilepsy  caused  by  piece 
of  skull  being  embedded  in  the  brain  as 
the  result  of  a  blow,  although  death  oc- 
curred a  year  and  a  half  after  the  blow 
was  received) ;  Fleet  v.  Johnson  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  223,  29  Times 
L.  R.  207,  57  Sol.  Jo.  226,  6  B.  W.  C.  C. 
60  (blood  poisoning  following  wound  in 
the  thumb) ;  Shirt  v.  Calico  Printers' 
Asso.  [1909]  2  K.  B.  (Eng.)  51,  3  B.  R. 
C.  62,  78  L.  J.  K.  B.  N.  S.  528,  100  L. 
T.  N.  S.  740,  25  Times  L.  R.  451,  53  Sol. 
Jo.  430,  2  B.  W.  C.  C.  342  (death  caused 
by  second  administration  of  anesthetic 
for  performance  of  second  operation 
necessary  to  secure  full  result  antici- 
pated by  first  operation). 

And  death  may  be  found  to  be  the  re- 
L.R.A.1916A 


suit  of  an  injury  where  such  injury  left 
the  workman  in  a  debilitated  condition 
and  unable  to  resist  a  disease  subsequent- 
ly supervening.  Euman  v.  Dalziel  [1913] 
S.  C.  246,  50  Scot.  L.  R.  143,  [1913]  W. 
C.  &  Ins.  Rep.  49,  6  B.  W.  C.  C.  900  (ap- 
pendicitis and  peritonitis  supervened 
after  workman  had  received  a  severe 
shaking) ;  Thoburn  v.  Bedlington  Coal 
Co.  (1911)  5  B.  W.  C.  C.  (Eng.)  128 
(bronchitis  of  which  workman  died  only 
hastened  his  death). 

Increased  incapacity  caused  by  the 
intervention  of  scarlet  fever  before  the 
workman  had  recovered  from  the  acci- 
dent is  referable  to  the  accident.  Brown 
v.  Kent  [1913]  3  K.  B.  (Eng.)  624,  82 
L.  J.  K.  B.  N.  S.  1039,  109  L.  T.  N.  S. 
293,  29  Times  L.  R.  702,  [1913]  W.  N. 
258,  6  B.  W.  C.  C.  745. 

Where  an  employee's  arm  was  broken 
while  he  was  in  the  defendant's  employ, 
and  was  treated  at  a  hospital,  where  the 
fracture  properly  united,  but  there  de- 
veloped an  abscess  upon  the  fleshy  part 
of  the  thumb  which  resulted  in  ankylosis 
of  the  thumb,  making  it  fundamentally 
useless,  the  injury  to  the  thumb  was  an 
"injury  by  accident"  arising  out  of  and 
in  the  course  of  the  employment.  New- 
comb  v.  Albertson  (1914)  85  N.  J.  L.  435, 
89  Atl.  928,  4  N.  C.  C.  A.  783. 

The  supreme  court  will  not  reverse 
the  findings  of  fact  that  the  death  of  an 
employee  was  due  to  injury  arising  out 
of  and  in  the  course  of  his  employment 
where  the  employee  died  of  pneumonia, 
and  there  was  expert  evidence  to  the 
effect  that  the  cause  of  pneumonia  was 
a  hurt  or  strain  of  the  back,  suffered  by 
the  deceased  about  two  weeks  before  his 
death,  although  such  expert  evidence 
was  flatly  contradicted  by  other  expert 
evidence.  Bayne  v.  Riverside  Storage  & 
Cartage  Co.  (1914)  181  Mich.  378,  148 
N.  W.  412,  5  N.  C.  C.  A.  837. 

Blood  poisoning,   which  is  the   direct 
consequence  of  the  accident,  is  the  proxi- 
mate result  thereof,  and  compensation  is 
recoverable  for  incapacity  or  death  re- 
sulting therefrom.    Great  Western  Pow- 
er Co.  v.  Pillsbury,  ante,  281,  (small  piece 
of  skin  knocked  off  back  of  employee's 
hand  and  blood  poisoning  supervened) ; 
Burns's  Case  (1914)  218  Mass.  8,  105  N. 
E.  601,  5  N.  C.  C.  A.  635  (injury  neces- 
sitated employee  lying  in  bed,  and  bed 
sore   was   developed,   resulting  in  blood 
poisoning) ;  Thompson  v.  Ashington  Coal 
Co.  (1901)  84  L.  T.  N.  S.  (Eng.)  412,  17 
|  Times  L.  R.  345,  84  L.  T.  N.  S.  412  (blood 
|  poisoning  caused  by  a  piece  of  coal  which 
I  had   worked   itself   into   the   workman's 
1  knee) ;  Fleet  v.  Johnson  [1913]  W.  C,  & 


INCAPACITY  FROM  DISEASE. 


293 


Ins.  Rep.  (Eng.)  223,  29  Times  L.  R. 
207,  57  Sol.  Jo.  226,  6  B.  W.  C.  C.  60 
(blood  poisoning  followed  injury  to 
thumb). 

Where  a  gardener  was  injured  while  at 
work  in  the  garden  by  a  nail  passing 
through  his  boot  and  piercing  the  large 
toe,  and  died  from  tetanus  which  subse- 
quently set  in,  it  was  held  that  he  died 
from  accident  arising  out  of  and  in  the 
course  of  his  employment,  where  it  was 
shown  that  persons  working  in  stables 
and  gardens  are  peculiarly  subject  to 
contract  the  disease  of  tetanus  in  suffer- 
ing from  any  wound  or  cut,  although  it 
was  not  shown  that  he  might  not  have 
contracted  the  disease  elsewhere.  Walk- 
er v.  Mullins  (1908)  42  Ir.  Law  Times 
168,  1  B.  W.  C.  C.  211. 

It  must  be  shown,  however,  that  the 
blood  poisoning  or  other  disease  from 
which  the  workman  suffered  was  the  re- 
sult of  an  injury  arising  out  of  his  em- 
ployment. 

Thus,  in  Jenkins  v.  Standard  Colliery 
Co.  (1911)  28  Times  L.  R.  (Eng.)  7, 
where  death  was  caused  by  blood  poison- 
ing following  an  abrasion  of  the  skin, 
compensation  was  denied  upon  the 
ground  that  there  was  nothing  to  show 
that  the  abrasion  was  received  in  the 
course  of  the  employment. 

So,  a  workman  who  cut  his  finger  at 
home,  and  subsequently  contracted  blood 
poisoning,  cannot  recover  compensation 
where  the  poison  germ  might  have  been 
conveyed  into  the  wound  in  any  one  of 
several  ways  other  than  the  employment. 
Chandler  v.  Great  Western  R.  Co.  [1912] 
W.  C.  Rep.  (Eng.)  168,  106  L.  T.  N.  S. 
479,  5  B.  W.  C.  C.  254. 

And  the  county  court  judge  is  not 
justified  in  drawing  the  inference  of 
injury  from  accident  arising  out  of  and 
in  the  course  of  the  employment  where 
a  collier  died  of  blood  poisoning  due  to 
an  abscess  in  the  knee,  and  there  was  no 
evidence  to  show  how  the  abscess  was 
caused,  except  that  his  work  was  in  a 
very  narrow  space,  which  necessitated 
his  working  on  his  knees.  Howe  v.  Fern- 
hill  Collieries  [1912]  W/  C.  &  Ins.  Rep. 
(Eng.)  408,  107  L.  T.  N.  S.  508,  5  B.  W. 
C.  C.  629. 

The  death  of  a  workman  from  blood 
poisoning  caused  by  the  sting  of  a  wasp 
while  he  was  driving  an  engine  on  his 
employer's  farm  is  not  caused  by  a  risk 
peculiarly  incident  to  the  employment. 
Amys  v.  Barton  [1912]  1  K.  B.  (Eng.) 
40,  '[1911]  W.  N.  205,  81  L.  J.  K.  B.  N. 
S.  65,  105  L.  T.  N.  S.  619,  28  Times  L. 
R.  29,  5  B.  W.  C.  C.  117. 

And  where  it  was  found  that  the 
L.R.A.1936A. 


wound  was  healing,  and  that  the  blood 
poisoning  was  caused  by  independent 
intervening  cause,  no  compensation  is 
recoverable  for  the  added  incapacity 
resulting  from  that  intervening  cause. 
Kill  v.  Industrial  Commission,  ante,  14. 

There  can  be  no  compensation  i.\  the 
absence  of  proof  that  the  death  resulted 
from  a  disease  which  was  caused  by  the 
accident.  Woods  v.  Wilson  [1913]  W. 
C.  &  Ins.  Rep.  (Eng.)  569,  29  Times  L. 
R.  726,  6  B.  W.  C.  C.  750;  Taylorson  v. 
Framwellgate  Coal  &  Coke  Co.  [1913] 
W.  C.  &  Ins.  Rep.  (Eng.)  179,  6  B.  W. 
C.  C.  56. 

But  the  fact  that  a  workman  who, 
after  receiving  an  injury,  was  taken  to 
a  hospital,  and  thereafter  was  found  to 
be  afflicted  with  pneumonia,  subsequent- 
ly went  to  his  home,  contrary  to  the  ad- 
vice of  his  doctor,  and  died  two  days 
afterward,  does  not  necessarily  preclude 
a  finding  that  his  death  resulted  from  the 
injury.  Dunnigan  v.  Cavan  [1911]  S. 
C.  579,  48  Scot.  L.  R,  459,  4  B.  W.  C.  C. 
386. 

So,  where  a  workman  died  four  years 
after  the  accident,  and  two  doctors  said 
the  death  was  due  to  the  accident,  and 
two  others  thought  the  death  was  not,  the 
county  court  judge  was  justified  in  hold- 
ing that  death  did  not  result  from  the 
injury.  Taylorson  v.  Framwellgate  Coal 
&  Coke  Co.  (Eng.)  supra. 

Disease     from     which     workman     was 
suffering  at  time  of  injury. 

Compensation  is  not  necessarily  barred 
merely  because  the  workman's  impaired 
physical  condition  at  the  time  rendered 
him  more  susceptible  to  injury  than  a 
normally  healthv  man.  Ismay  v.  Wil- 
liamson [1908]  A.  C.  (Eng.)  437, 1  B.  W. 
C.  C.  232,  77  L.  J.  P.  C.  N.  S.  107,  99  L. 
T.  N.  S.  395,  27  Times  L.  R.  881,  52  Sol. 
Jo.  713  (heat  stroke) ;  Maskery  v.  Lan- 
cashire Shipping  Co.  (1914)  7  B.  W.  C. 
C.  (Eng.)  428  (heat  stroke) ;  Golder  v. 
Caledonian  R.  Co.  (1902)  5  Sc.  Sess.  Cas. 
(Scot.)  5th  Series  123  (workman  suffered 
from  nephritis) ;  Hughes  v.  Clover 
[1909]  2  K.  B.  (Eng.)  798,  78  L.  J.  K. 

B.  N.  S.  1057,  101  L.  T.  N.  S.  475,  25 
Times  L.  R.  760,  53  Sol.  Jo.  763,  affirmed 
in  [1910]  A.  C.  242,  79  L.  J.  K.  B.  N.  S. 
470,  102  L.  T.  N.  S.  340,  26  Times  L. 
R.  359,  54  Sol.  Jo.  375,  3  B.  W.  C.  C.  275, 
47  Scot.  L.  R.  885  (rupture  of  aneurism 
of  aorta) ;  Groves  v.  Burroughes  (1911) 
4   B.    W.    C.    C.    (Eng.)    185    (previous 
wound   burst   while   workman   was   per- 
forming his  ordinary  work) ;  Trodden  v. 
J.  McLennard  &  Sons  (1911)  4  B.  W.  C. 

C.  (Eng.)     190     (workman's    heart    in 


294 


WORKMEN'S  COMPENSATION. 


such  condition  that  any  slight  exertion 
might  have  caused  failure) ;  Aitken  v. 
Finlayson,  B.  &  Co.  [1914]  S.  C.  770 
[1914]  2  Scot.  L.  T.  27,  51  Scot.  L.  R. 
653,  7  B.  W.  C.  C.  918  (stroke  of  apo- 
plexy following  unusual  exertion) ;  M'ln- 
nes  v.  Dunsmuir  [1908]  S.  C.  (Scot.) 
1021  (cerebral  hemorrhage;  workman's 
arteries  in  a  degenerate  condition) ;  Bro- 
forst  v.  The  Blomfield  (1913)  6  B.  W.  C. 
C.  (Eng.)  613  (fireman  whose  arteries 
were  in  a  diseased  condition  suffered 
apoplectic  stroke  while  raking  out  the 
fires) ;  Doughton  v.  Hickman  [1913]  W. 
C.  &  Ins.  Rep.  (Eng.)  143,  6  B.  W.  C.  C. 
77  (heart  failure) ;  Fennah  v.  Midland 
O.  W.  R.  Co.  (1911)  45  IT.  Law  Times, 
192,  4  B.  W.  C.  C.  440;  Wicks  v.  Dowell 
&  Co.  [1905]  2  K.  B.  (Eng.)  225,  74  L. 
J.  K.  B.  N.  S.  572,  53  Week.  Rep.  515,  92 
L.  T.  N.  S.  677,  21  Times  L.  R.  487,  2 
Ann.  Cas.  732  (workman  fell  down  hatch- 
way upon  being  seized  with  epileptic 
fits) ;  Woods  v.  Wilson  (1915)  84  L.  J. 
K.  B.  N.  S.  (Eng.)  1067,  31  Times  L.  R. 
273,  [1915]  W.  N.  109,  59  Sol.  Jo.  348,  8 
B.  W.  C.  C.  288  (peritonitis  caused  by 
perforation  of  the  bowel,  although  organ 
was  in  a  weakened  and  disordered  condi- 
tion due  to  chronic  appendicitis). 

"The  mere  circumstance  that  a  partic- 
ular man,  in  doing  work  arising  out  of 
and   in'  the   course   of   his   employment, 
meets  with  an  accident  which  a  perfectly 
healthy  man  would  not  have  met  with, 
is  no  answer  at  all."    Dotzaues  v.  Strand 
Palace  Hotel  (1910)  3  B.  W.  C.  C.  (Eng.)  ( 
387  (man  suffering  from  a  disease  of  the  I 
skin   injured  by  putting  his   hand   into 
water  containing  soda  and  soft  soap). 

That  the  consequences  of  the  injury 
were  aggravated  by  the  workman's  physi- 
cal condition  at  the  time  the  injury  was 
received  does  not  prevent  a  recovery  of 
compensation.  Lloyd  v.  Sugg  [1900]  1 
Q.  B.  (Eng.)  486,  69  L.  J.  Q.  B.  N.  S. 
190,  81  L.  T.  N.  S.  769,  16  Times  L.  R. 
65  (workman  had  gout  in  his  hand,  and 
jar  caused  hand  to  swell). 

And  where  the  progress  and  intensity 
of  a  disease  are  accelerated  and  aggra- 
vated by  an  accident,  compensation  will 
be  allowed.  Willoughby  v.  Great  West- 
ern R.  Co.  (1904;  C.  C.)  117  L.  T.  Jo. 
{Eng.)  132,  6  W.  C.  C.  28. 

So  the  acceleration  of  previously  exist- 
ing heart  disease  to  a  mortal  end  sooner 
than  otherwise  it  would  have  come  is  an 
injury  within  the  meaning  of  the  Massa- 
chusetts act.  Re  Brightman,  post,  321, 
Fisher's  Case  (1915)  220  Mass.  581,  108 
N.  E.  361  (exertion  brought  on  heart 
failure  where  valves  of  the  heart  had 
L.R.A.1916A. 


been  affected  because  of  acute  articular 
rheumatism). 

A  blow  on  the  head,  which  in  all  prob- 
ability would  have  caused  no  serious 
injury  to  a  normally  healthy  man,  but 
which  caused  the  death  of  the  workman, 
who  was  suffering  from  an  advanced 
stage  of  arterial  sclerosis,  may  be  held 
to  be  an  accident.  Milwaukee  v.  Indus- 
trial Commission  (1915)  160  Wis.  238, 
151  N.  W.  247. 

Compensation  is  recoverable  for  inca- 
pacity due  to  accident,  although  there 
might  also  have  been  incapacity  had 
there  been  no  accident.  Harwood  v. 
Wyken  Colliery  Co.  [1913]  2  K.  B. 
(Eng.)  158,  82  L.  J.  K.  B.  N.  S.  414,  108 
L.  T.  N.  S.  283,  29  Times  L.  R.  290,  57 
Sol.  Jo.  300,  [1913]  W.  C.  &  Ins.  Rep. 
317,  [1913]  W.  N.  53,  6  B.  W.  C.  C.  225 
(workman  was  suffering  from  heart 
disease). 

But  no  compensation  is  recoverable  in 
respect  to  an  incapacity  primarily  caused 
by  a  disease  or  the  impaired  physical 
condition  of  the  workman  at  a  time  when 
he  is  doing  his  ordinary  work  in  the 
ordinary  way.  Hensey  v.  White  [1900] 
1  Q.  B.  (Eng.)  481,  48  Week.  Rep.  257, 
69  L.  J.  Q.  B.  N.  S.  188,  63  J.  P.  804,  81 
L.  T.  N.  S.  767, 16  Times  L.  R.  64  (work- 
man ruptured  blood  vessel  while  doing 
ordinary  work) ;  O'Hara  v.  Hayes  (1910) 
44  IT.  Law  Times  71,  3  B.  W.  C.  C.  586 
(workman  suffered  from  progressive 
heart  disease  and  was  liable  to  die  at  any 
time) ;  Swinbank  v.  Bell  Bros.  (1911)  5 

B.  W.  C.  C.  (Eng.)  48  (incapacity  due  to 
eczematous  condition) ;  Hugo  v.  Larkins 
(1910)  3  B.  W.  C.  C.  (Eng.)  228  (erysipe- 
las) ;  Kerr  v.  Ritchie  [1913]   S.  C.  613, 
50  Scot.  L.  R.  434,  [1913]  W.  C.  &  Ins. 
Rep.  297,  6  B.  W.  C.  C.  419  (heart  disease 
coming  on  while  workman  was  doing  his 
ordinary    work) ;    Hawkins    v.    Powells 
Tillery  Steam  Coal  Co.   [1911]   1  K.  B. 
(Eng.)  988,  80  L.  J.  K.  B.  N.  S.  769,  104 
L.  T.  N.  S.  365,  27  Times  L.  R.  282,  55 
Sol.  Jo.  329,  4  B.  W.  C.  C.  178  (the  work- 
man died  of  angina  pectoris  not  brought 
on  by  any  exertion)  ;  Walker  v.  Lilleshall 
Coal  Co.  [1900]  1  Q.  B.   (Eng.)  488,  81 
L.  T.  N.  S.  769,  69  L.  J.  Q.  B.  N.  S.  192, 
64  J.  P.  85,  48  Week.  Rep.  257,  16  Times 
L.  R.  108   (blistered  finger  of  workman 
came  in  contact  with  red  lead) ;  Spence  v. 
Baird   [1912]   S.  C.  343,  49  Scot.  L.  R. 
278,  5  B.  W.  C.  C.  542,   [1912]    W.  C.  • 
Rep.  18  (advanced  heart  disease) ;  Fed- 
eral Gold  Mine  v.  Ennor  (1910;  H.  C.)  13 

C.  L.   R.    (Austr.)    276    (cerebral   hem- 
orrhage not  in  any  way  connected  with 
work). 

An  accident  will  not  be  inferred  where 


INCAPACITY  FROM  DISEASE. 


295 


there  is  no  evidence  of  any  strain,  and 
the  evidence  adduced  is  equally  as  con- 
sistent with  the  fact  of  no  accident,  as 
with  the  fact  of  an  accident.  Barnabas 
v.  Bersham  Colliery  Co.  (1910;  H.  L.) 
103  L.  T.  N.  S.  (Eng.)  513,  55  Sol.  Jo. 
63  (apoplexy) ;  Kerr  v.  Ritchie  (1913) 
50  Scot.  L.  R.  434,  [1913]  S.  C.  613, 
[1913]  W.  C.  &  Ins.  Rep.  297,  6  B.  W. 
C.  C.  419  (heart  failure) ;  Beaumont  v. 
Underground  Electric  R.  Co.  [1912]  W. 
C.  Rep.  (Eng.)  123,  5  B.  W.  C.  C.  247 
(heart  disease). 

And  no   compensation   is   recoverable 
for  incapacity  caused  by  cardiac  break- 


down which  was  not  due  to  any  sudden 
strain,  but  was  the  natural  result  of  the 
workman  continuing  to  do  work  which 
was  too  heavy  for  him  to  do.  Coe  v. 
Fife  Coal  Co.  [1909]  S.  C.  393,  46  Scot. 
L.  R.  328. 

Whether  the  death  of  a  miner,  seventy- 
nine  years  old,  who  died  after  having 
been  injured  by  the  fall  of  a  stone  from 
the  roof  of  a  mine,  was  caused  by  the 
injury  or  apoplexy,  was  held  to  be  a 
question  for  the  jury,  in  Warnock  v. 
Glasgow  Iron  &  Steel  Co.  (1904)  6  Sc. 
Sess.  Cas.  (Scot.)  5th  series,  584. 

W.  M.  G. 


WASHINGTON    SUPREME    COURT. 

( Department  No.   1 . ) 

JOHN  ZAPPALA,  Respt., 

v. 

INDUSTRIAL  INSURANCE  COMMISSION 
OF  THE  STATE  OF  WASHINGTON, 
Appt. 

(82  Wash.  314,  144  Pac.  54.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  hernia. 

1.  Hernia  resulting  from  a  workman's  at- 
tempting to  move  a  heavy  truck  in  the  line 
of  his  employment  is  within  the  operation 
of  a  workmen's  compensation  act  providing 
compensation  for  injury  resulting  from  any 
fortuitous  event,  as  distinguished  from  dis- 
ease. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  S. 

Same  —  review  by  courts  —  binding  ef- 
fect of  Commission's  rulings. 

2.  Under   a  workmen's  compensation   act 
giving  an  appeal  to  the  courts  from  rulings 
of   the   Commission,   the   court   is   not   pre- 
vented from  determining   questions  of   law 
as  to  what   injuries  are  within  the  opera- 
tion of  the  statute,  by  a  provision  that  the 
decision  of  the  Commission  shall  be  prima 
facie  correct,  or  by  the  principle  that  the 
rulings  of  the  Commission  upon   questions 
of   policy   involving   the   administration    of 
the  act  shall  be  upheld. 

For  other  cases,  see  Public  Service  Commis- 
sions, in  Dig.  1-52  N.  S. 

Trial  —  interpretation  of  statute  —  sub- 
mission to  jury. 

3.  An   action    under  the   workmen's  com- 
pensation   act,    which    involves    merely   the 
question  whether  or  not  the  injury  is  with- 

Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to   whether  hernia   is  an   accident  or 
personal     injury    within    the    meaning    of 
workmen's   compensation   acts,    see   annota- 
tion, post.  303. 
L.R.A.1916A. 


in  the  terms  of  the  act,  should  not  be  sub- 
mitted to  the  jury. 
For  other  cases,  see  Trial,  II.  c,  1,  in  Dig. 

1-52  AT.  8. 
Appeal    —    submission    of    question    of 

law  to  jury  —  nonprejudicial  error. 

4.  Error  in  submitting  a  question  of  law 
to  the  jury  does  not  require  reversal  if  the 
right  conclusion  was  reached. 
For  other  cases,  see  Appeal  and  Error,  VII. 

m,  7,  d,  in  Dig.  1-52  N.  8. 

(November  17,  1914.) 

APPEAL  by  the  Industrial  Insurance 
Commission  from  a  judgment  of  the 
Superior  Court  for  Chehalis  County  in 
favor  of  claimant  upon  appeal  from  its 
action  in  rejecting  his  claim  for  compen- 
sation under  the  workmen's  compensation 
act,  for  an  injury  sustained  by  him.  Af- 
firmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  W.  V.  Tanner,  Attorney  General, 
and  John  M.  Wilson,  Assistant  Attorney 
General,  for  appellant: 

The  injury  of  which  the  respondent  com- 
plained was  not  the  result  of  a  fortuitous 
event  within  the  meaning  of  the  last  clause 
of  §  3  of  the  workmen's  compensation  act. 

Southard  v.  Railway  Pass.  Assur.  Co.  34 
Conn.  578,  Fed.  Cas.  No.  13,182;  Cobb  v. 
Preferred  Mut.  Acci.  Asso.  96  Ga.  818,  22 
S.  E.  976;  Clidero  v.  Scottish  Acci.  Ins.  Co 
29  Scot.  L.  R.  303;  Feder  v.  Iowa  State 
Traveling  Men's  Asso.  107  Iowa,  538,  43 
L.R.A.  693,  70  Am.  St.  Rep.  212,  78  N.  W. 
252;  Hensey  v.  White  [1900]  1  Q.  B.  481,  69 
L.  J.  Q.  B.  N.  S.  188,  63  J.  P.  804,  48  Week. 
Rep.  257,  81  L.  T.  N.  S.  767,  16  Times 
L.  R.  64,  2  W.  C.  C.  1. 

Mr.  F.  W.  Loomis,  for  respondent: 

The  spirit  and  intent  of  the  industrial  in- 
surance act  are  to  include  all  injuries  re- 
ceived by  workmen  during  the  course  of 
and  as  a  result  of  their  employment,  what- 
ever may  be  the  nature  of  the  injury. 


296 


WORKMEN'S  COMPENSATION. 


State  ex  rel.  Davis-Smith  Co.  v.  Clausen, 
65  Wash.  175,  37  L.R.A.(N.S.)  466,  117  Pac. 
1106,  2  N.  C.  C.  A.  823,  3  N.  C.  C.  A.  599: 
Peet  v.  Mills,  76  Wash.  437,  post,  358,  136 
Pac.  685,  4  N.  C.  C.  A.  786. 

The  act  defines  "injury"  as  "resulting 
from  some  fortuitous  event,  as  distinguished 
from  the  contraction  of  disease." 

Horsfall  v.  Pacific  Mut.  L.  Ins.  Co.  32 
Wash.  135,  63  L.R.A.  425,  98  Am.  St.  Rep. 
846,  72  Pac.  1028:  United  States  Mut. 
Acci.  Asso.  v.  Barry,  131  U.  S.  100,  33  L. 
ed.  60,  9  Sup.  Ct.  Rep.  755;  Ludwig  v. 
Preferred  Acci.  Ins.  Co.  113  Minn.  510,  130 
N.  W.  5;  Railway  Officials  &  E.  Acci.  Asso. 
v.  Drummond,  56  Neb.  235,  76  N.  W.  562. 

Hernia  unexpectedly  occurring  in  the 
usual  course  of  one's  employment,  and  as 
a  result  of  it,  is  a  fortuitous  or  accidental 
event  for  which  the  respondent  is  entitled 
to  compensation. 

Horsfall  v.  Pacific  Mut.  L.  Ins.  Co.  32 
Wash.  133,  63  L.R.A.  425,  98  Am.  St.  Rep. 
846,  72  Pac.  1028;  United  States  Mut. 
Acci.  Asso.  v.  Barry,  131  U.  S.  100,  33 
L.  ed.  60,  9  Sup.  Ct.  Rep.  755 :  North  Amer- 
ican Life  &  Acci.  Ins.  Co.  v.  Burroughs,  69 
Pa.  43,  8  Am.  Rep.  212;  Atlanta  Acci. 
Asso.  v.  Alexander,  104  Ga.  709,  42  L.R.A. 
188,  30  S.  E.  939,  4  Am.  Neg.  Rep.  616; 
Patterson  v.  Ocean  Acci.  &  Guarantee  Corp. 
25  App.  D.  C.  46;  Rodey  v.  Travelers'  Ins. 
Co.  3  N.  M.  543,  9  Pac.  348;  Hamlyn  v. 
Crown  Accidental  Ins.  Co.  [1893]  1  Q.  B. 
750,  62  L.  J.  Q.  B.  N.  S.  409,  4  Reports, 
407,  68  L.  T.  N.  S.  701,  41  Week.  Rep.  531, 
57  J.  P.  663;  Martin  v.  Travellers'  Ins.  Co. 
1  Fost.  &  F.  505:  Standard  Life  &  Acci. 
Ins.  Co.  v.  Schmaltz,  66  Ark.  588,  74  Am. 
St.  Rep.  112,  53  S.  W.  49. 

Whether  or  not  any  certain  event  was  an 
accident  within  the  meaning  of  the  act  is 
one  of  fact,  and  not  of  law. 

Boyd,  Workmen's  Compensation,  §  573; 
Hodd  v.  Tacoma,  45  Wash.  436,  88  Pac.  842 ; 
Atlanta  Acci.  Asso.  v.  Alexander,  104  Ga. 
709,  42  L.R.A.  188,  30  S.  E.  939,  4  Am.  Neg. 
Rep.  616;  Peterson  v.  Locomotive  Engineers' 
Mut.  Life  &  Acci.  Ins.  Asso.  123  Minn.  505, 
49  L.R.A.(N.S.)  1022,  144  N.  W.  160,  Ann. 
Cas.  1915A,  536;  Binder  v.  National  Masonic 
Acci.  Asso.  127  Iowa,  25,  102  N.  W.  190; 
Buchholz  v.  Metropolitan  L.  Ins.  Co.  177  Mo. 
App.  683,  160  S.  W.  573:  Hilts  v.  United 
States  Casualty  Co.  176  Mo.  App.  635,  159 
S.  W.  771. 

Even  if  respondent  was  afflicted  with  pre- 
disposition to  hernia  or  incomplete  hernia, 
if  his  violent  and  unusual  exertion  in  the 
course  of  his  employment  was  the  immediate 
cause  of  completing  the  hernia,  he  is  entitled 
to  compensation. 

Moon  v.  Order  of  United  Commercial 
Travelers,  96  Neb.  65,  52  L.R.A.  1203,  146 
L.R.A.1916A. 


N.  W.  1037;  Shaw  v.  Seattle,  39  Wash.  590, 
81  Pac.  1057. 

Morris,  J.,  delivered  the  opinion  of  the 
court: 

Respondent  suffers  from  a  hernia  and, 
claiming  to  have  received  it  under  circum- 
stances entitling  him  to  relief  under  the 
workmen's  compensation  act,  filed  his  claim 
with  the  Industrial  Insurance  Commission. 
The  claim  was  rejected  upon  the  ground 
that  the  hernia  complained  of  was  not  the 
result  of  "some  fortuitous  event"  within  the 
language  of  the  act.  Respondent  then  ap- 
pealed to  the  lower  court  where,  over  the 
objection  of  the  Commission,  the  case  was 
submitted  to  a  jury  to  determine  whether 
or  not  the  injury  was  such  as  fell  within 
the  act.  Verdict  was  returned  for  respond- 
ent, and  the  Commission  appeals. 

The  determinative  question  arises  under 
§  3  of  the  act,  (Laws  1911,  p.  346,  3  Rem. 
&  Bal.  Code,  §  6G04 — 3),  providing  that  (p. 
349)  "the  words  'injury'  or  'injured,'  as  used 
in  this  act,  refer  only  to  an  injury  resulting 
from  some  fortuitous  event  as  distinguished 
from  the  contraction  of  disease." 

The  respondent  was  in  the  employ  of  a 
cooperage  company,  and  on  the  day  of  the 
alleged  injury  was  pushing  a  heavily  loaded 
truck.  The  language  of  the  respondent  in 
describing  the  circumstances  under  which 
the  injury  was  received  was:  "That  the  car 
ran  harder  than  usual,  and  he  tried  three  or 
four  times  to  start  it,  but  could  not  move  it. 
Then  he  put  all  his  strength  into  it,  gave 
a  jerk  and  hurt  himself ;  felt  a  sudden 
pain ;  could  not  move  for  a  little  while ; 
put  his  hands  where  he  felt  the  hurt  and 
called  for  help;  looked  at  himself  and  saw 
a  swelling,  a  small  lump  where  he  was  hurt; 
that  he  had  never  had  any  pain  there  before 
or  any  previous  rupture." 

There  was  other  corroborative  evidence. 
It  is  the  contention  of  the  Commission  that 
these  circumstances  do  not  disclose  that 
the  injury  resulted  from  "a  fortuitous 
event,"  and  that  no  accident  occurred  which 
produced  the  injury,  contending  that,  in- 
asmuch as  respondent  did  not  slip  or  fall, 
nothing  struck  him,  and  nothing  happened 
out  of  the  ordinary  which  produced  the 
rupture  or  hernia,  it  cannot  be  said  that  the 
hernia  resulted  from  some  fortuitous  event. 
"Fortuitous"  is  defined  as:  "Occurring  by 
chance  as  opposed  to  design ;  coming  or 
taking  place  without  any  cause;  accidental; 
casual ; "  and  a  fortuitous  cause  is  said  to 
be  "a  contingent  or  accidental  cause." 
Standard  Diet. 

In  construing  the  language  of  the  act  we 
must  have  in  mind  the  evident  purpose  and 
intent  of  the  act  to  provide  compensation 
for  workmen  injured  in  hazardous  under- 
takings, reaching  "every  injury  sustained  by 


ZAPPALA  v.  INDUSTRIAL  INSURANCE  COMMISSION. 


297 


a  workman  engaged  in  any  such  industry, 
and  make  a  sure  and  certain  award  there- 
for, bearing  a  just  proportion  to  the  loss 
sustained,  regardless  of  the  manner  in  which 
the  injury  was  received"  (State  ex  rel. 
Davis-Smith  Co.  v.  Clausen,  65  Wash.  156, 
37  L.R.A.(N.S.)  466,  2  N.  C.  C.  A.  823,  3  N. 
C.  C.  A.  599,  117  Pac.  1101,  and  that  the  act 
should  be  liberally  interpreted  to  the  end 
that  the  purpose  of  the  legislature,  in  sup- 
pressing the  mischief  and  advancing  the 
remedy,  be  promoted  even  to  the  inclusion 
of  cases  within  the  reason  although  outside 
the  letter  of  the  statute,  and  that  every 
hazardous  industry  within  the  purview  of 
the  act  should  bear  the  burden  arising  out 
of  injuries  to  its  employees  regardless  of 
the  cause  of  the  injury.  Peet  v.  Mills, 
76  Wash.  437,  post,  358,  136  Pac.  685,  4  N. 
C.  C.  A.  786.  The  sustaining  of  an  injury 
while  using  extreme  muscular  effort  in 
pushing  a  heavily  loaded  truck  is  as  much 
within  the  meaning  of  a  fortuitous  event  as 
though  the  injury  were  the  result  of  a  fall 
or  the  breaking  of  the  truck.  To  hold  with 
the  Commission  that  if  a  machine  breaks, 
any  resulting  injury  to  a  workman  is  with- 
in the  act,  but  if  the  man  breaks,  any  re- 
sulting injury  is  not  within  the  act,  is  too 
refined  to  come  within  the  policy  of  the  act 
as  announced  by  the  legislature  in  its  adop- 
tion, and  the  language  of  the  court  in  its 
interpretation.  The  machine  and  the  man 
are  within  the  same  class  as  producing 
causes,  and  any  injury  resulting  from  the 
sudden  giving  way  of  the  one,  while  used  as 
a  part  of  any  industry  within  the  act,  is 
as  much  within  the  contemplation  of  the 
act  as  the  other.  When  the  appellant 
admits  that  the  breaking  of  the  truck  be- 
cause of  the  application  of  unusual  force, 
with  resultant  injury  to  the  workman,  is 
covered  by  the  act,  then  it  must  admit  that 
the  tearing  of  muscles  or  the  rupture  of 
fibers,  or  whatever  it  is  that  causes  hernia, 
while  exercising  unusual  effort,  is  likewise 
covered  by  the  act;  for  there  can  be  no 
sound  distinction  between  external  and  in- 
ternal causes  arising  from  the  same  act 
and  producing  the  same  result.  In  Board- 
man  v.  Scott,  3  W.  C.  C.  33,  a  case  arising 
out  of  the  British  workmen's  compensation 
act,  it  was  held  that  an  internal  injury 
caused  to  a  person  in  a  normal  state  of 
health  was  a  fortuitous  and  unforeseen 
event,  in  a  case  where  a  workman,  while 
lifting  a  heavy  beam,  suddenly  tore  several 
fibers  of  the  muscles  of  his  back.  In  Purse 
v.  Hay  ward,  125  L.  T.  Jo.  10,  1  B.  W.  C. 
C.  216,  it  was  likewise  held  that  a  work- 
man in  his  master's  field,  who,  finding  that 
the  grain  had  been  trodden  down  by  bul- 
locks, stooped  to  raise  it  and  sprained  his 
left  leg,  was  within  the  remedies  of  the 
L.R.A.1916A. 


same  act.  The  language  of  the  British 
act  is  "personal  injury  by  accident  arising 
out  of  and  in  the  course  of  employment." 
The  English  cases  make  no  distinction  be- 
tween an  accident  and  a  fortuitous  event  as 
used  in  our  act,  for  they  say  in  the  case 
above  cited,  in  answering  the  contention 
there  made  that  an  injury,  to  be  within  the 
British  act,  must  be  caused  by  some  for- 
tuitous and  external  event,  that  "the  word 
'accident'  is  a  popular  word  of  very  wide 
meaning.  Originally  a  grammarian's  word, 
it  lias  been  used  from  Dr.  Johnson's 
time  until  to-day,  to  mean  'that  which 
happens  unforeseen,  casualty,  chance.'  For 
four  years  this  man  had  successfully 
used  these  muscles  to  lift  this  weight; 
owing,  perhaps  to  carelessness,  perhaps 
to  a  slip,  perhaps  to  some  other  cause, 
except  disease,  he  snaps  the  fibers  of 
the  muscles  that  had  always  successfully 
done  the  work,  and  if  any  ordinary  person 
had  been  asked  what  had  happened  to  him, 
he  would  have  said  that  the  man  had  had 
an  accident,  and  I  think  the  word  would 
have  been  rightly  used.  To  me  it  is  the 
same  as  if  he  had  been  using  a  rope  strong 
enough  for  the  purpose,  and  by  overstrain 
or  sudden  jerk  the  rope  had  snapped  and 
the  beam  had  fallen  upon  him.  That  would 
be  an  accident.  In  one  case  the  work  is 
done  by  a  rope;  in  the  other  by  a  set  of 
muscles.  In  each  case  the  machinery  is 
normally  fit  for  the  work,  ,but  the  unex- 
pected happens,  and  the  rope  or  muscle 
snaps  and  there  is  an  accident.  To  my 
thinking,  there  is  in  the  word  'accident'  al- 
ways an  element  of  injury.  .  .  .  As  to 
the  word  'fortuitous,'  I  do  not  think  I  need 
trouble  much  about  it.  If  the  injury  were 
caused  by  disease,  it  is  clear  that  the  ap- 
plicant could  not  recover;  but  I  find  as  a 
fact  the  man  was  not  in  any  way  diseased. 
Indeed,  it  was  not  seriously  contended  that 
he  was.  'Fortuitous'  means  'accidental,' 
'casual,'  'happening  by  chance;'  and  I  have 
already  said  that,  in  my  opinion,  this  in- 
jury was  caused  by  an  accidental  and  for- 
tuitous event." 

So  that,  so  far  as  concerns  the  class  of 
injuries  for  which  acts  of  this  character 
provide  compensation,  no  sound  distinction 
can  be  made  between  those  resulting  from 
accident  and  those  resulting  from  some  for- 
tuitous event.  The  above  reasoning  is  that 
employed  by  the  county  judge.  Upon  ap- 
peal (Boardman  v.  Scott,  85  L.  T.  N.  S. 
502)  the  judgment  was  allirmed,  the  court 
saying:  "In  determining  the  question 
whether  the  injury  has  been  caused  by  an 
'accident'  or  not,  we  must  discriminate  be- 
tween that  which  must  occur  and  that  which 
need  not  necessarily  occur  in  the  course  of 
the  employment.  If  the  thing  must  happen, 


298 


WORKMEN'S  COMPENSATION. 


it  is  not  'an  accident,  but  if  it  need  not 
happen,  then  there  is  the  fortuitous  ele- 
ment and  there  is  an  accident." 

Fcnton  v.  Thorley  [1903]  A.  C.  443,  72 
L.  J.  K.  B.  N.  S.  787,  52  Week.  Rep.  81,  89 
L.  T.  N.  S.  314,  19  Times  L.  R.  684,  5  W. 
C.  C.  1,  another  English  case,  arose  out  of 
these  circumstances:  The  workman,  while 
turning  a  wheel  attached  to  a  press,  "sud- 
denly felt  something  which  he  describes  as 
a  tear  in  his  inside,  and  upon  examination 
it  was  found  that  he  was  ruptured.  There 
was  no  evidence  of  any  slip,  wrench,  or  sud- 
den jerk."  It  was  held  below,  following 
Hensey  v.  White  [1900]  1  Q.  B.  481,  6!)  L. 
J.  Q.  B.  N.  S.  188,  63  J.  P.  804,  48  Week. 
Rep.  257,  81  L.  T.  N.  S.  767,  16  Times  L. 
R.  64,  2  W.  C.  C.  1,  relied  upon  by  appel- 
lant, that  there  could  be  no  recovery  because 
of  "an  entire  lack  of  the  fortuitous  ele- 
ment." This  contention  was  overruled,  and 
it  was  said  that  the  word  "accident,"  as 
used  in  the  British  act,  was  used  in  its 
popular  ordinary  sense  as  denoting  an  un- 
looked-for mishap  or  an  untoward  event 
which  is  not  expected  or  designed.  Refer- 
ence is  made  to  Stewart  v.  Wilson  &  C.  Coal 
Co.  Sc.  Sess.  Cas.  5th  series,  120,  where  a 
miner  strained  his  back  in  replacing  a  de- 
railed coal  hutch,  and  the  question  arose, 
Was  it  an  accident  within  the  meaning  of 
the  act?  All  the  judges  held  that  it  was 
and  that  when  "a  workman  in  the  reason- 
able performance  of  his  duties  sustains  a 
physical  injury  as  a  result  of  the  work  he 
is  engaged  in,  this  is  accidental  injury  in 
the  sense  of  the  statute.  If  such  an  occur- 
rence as  this  cannot  be  described  in  ordi- 
nary language  as  an  accident,  I  do  not  know 
how  otherwise  to  describe  it." 

United  States  Mut.  Acci.  Asso.  v.  Barry, 
131  U.  S.  100,  33  L.  ed.  60,  9  Sup.  Ct.  Rep. 
755,  and  North  American  Life  &  Acci.  Ins. 
Co.  v.  Burroughs,  69  Pa.  43,  8  Am.  Rep.  212, 
are  cited  in  support  of  the  holding.  Both 
of  these  are  accident  insurance  cases.  In 
the  first,  a  man  was  fatally  injured  in 
jumping  off  a  platform.  In  the  second,  an 
accidental  strain  resulted  in  death.  The 
opinion  in  each  case  was  that  death  re- 
sulted from  an  accidental  injury  within  the 
meaning  of  the  policy.  These  two  cases,  so 
cited  by  the  English  court,  have  been  ap- 
provingly cited  by  this  court  in  Horsfall  v. 
Pacific  Mut.  L.  Ins.  Co.  32  Wash.  132,  63 
L.R.A.  425,  98  Am.  St.  Rep.  846,  72  Pac. 
1028,  where  it  was  held  that  a  violent  dila- 
tion of  the  heart,  resulting  in  death,  caused 
by  lifting  a  heavy  weight,  was  within  the 
provision  of  an  accident  policy  covering  ac- 
cidents caused  solely  by  external,  violent, 
and  accidental  means.  In  Timmins  v. 
Leeds  Forge  Co.  16  Times  L.  R.  521,  it  was 
held  that  a  workman  who  ruptured  him- 
L.R.A.1916A. 


self  owing  to  the  difficulty  of  lifting  a 
plank  frozen  to  another  plank  was  within 
MK;  British  act,  the  court  saying  the  evi- 
dence showed  the  injury  to  he  "fortuitous 
and  unexpected." 

The  American  cases  arising  out  of  acts 
of  this  character  sustain  our  conclusion 
that  there  is  no  distinction  between  the  ac- 
cident and  a  fortuitous  event.  In  Bryant  v. 
Kissell,  84  N.  J.  L.  72,  80  Atl.  458,  3  N.  C. 
C.  A.  585,  it  is  said,  in  defining  the  word 
"accident"  as  used  in  the  New  Jersey  act: 
"An  'accident'  is  an  unlooked-for  mishap 
or  untoward  event  which  is  not  expected  or 
designed,"  citing  Kenton  v.  Thorley,  supra. 
In  Re  Murray,  Ops.  Sol.  Dept.  Commerce  & 
Labor,  p.  201,  it  is  held  that  a  rupture  of 
the  internal  organs,  due  to  the  change  be- 
tween high  and  normal  atmospheric  pres- 
sure, was  an  accident.  In  McGuigan  v. 
Maryland  Casualty  Co.,  the  Massachusetts 
Industrial  Accident  Board  holds  that,  where 
a  carpenter  strained  himself  moving  a  heavy 
radiator,  he  was  within  the  act  granting 
compensation  for  personal  injuries  sustained 
in  the  course  of  employment.  In  Gross  v. 
Marshall  Butters  Lumber  Co.,  the  Michigan 
Industrial  Accident  Board,  October  15,  1913, 
holds  that  a  workman  suffering  "severe 
straining  of  lumbar  muscles  and  bruising 
of  the  third  and  fourth  vertebra?"  was  en- 
titled to  compensation  under  a  classification 
similar  to  that  in  the  Massachusetts  act. 
The  above  cases  are  collated  in  1  Brad- 
bury's Workmen's  Compensation,  367.  It 
seems  to  us  it  is  not  necessary  to  go  fur- 
ther in  support  of  our  ruling  that  the  in- 
jury to  the  respondent  resulted  from  a  for- 
tuitous event  within  the  meaning  and  intent 
of  our  act. 

Section  20  of  our  act  (Laws  1911,  p.  368) 
provides  that  "in  all  court  proceedings  under 
or  pursuant  to  this  act  the  decision  of  the 
Department  shall  be  prima  facie  correct, 
and  the  burden  of  proof  shall  be  upon  the 
party  attacking  the  same."  3  Rem.  &  Bal. 
Code,  §  6604-20. 

It  is  now  contended  that  respondent  has 
not  sustained  the  burden  of  proof  cast  upon 
him  by  the  law  in  seeking  to  overrule  the  de- 
cision of  the  Insurance  Commission.  There 
is  no  dispute  as  to  the  facts  resulting  in  the 
injury,  so  that  we  are  not  called  upon  to  re- 
view any  decision  reached  by  the  Commis- 
sion on  disputed  facts.  The  question  is  rath- 
er one  of  law  in  determining  the  proper 
interpretation  of  the  act  as  applied  to  the 
undisputed  facts. 

The  appellant  also  suggests  that  the 
court  ought  not  to  disturb  the  rulings  of  the 
Commission  upon  questions  of  policy  involv- 
ing the  administration  of  the  act,  and  that 
the  Commission,  having  adopted  certain 
rules  for  their  government  in  these  cases. 


ZAPPALA  v.  INDUSTRIAL  INSURANCE  COMMISSION. 


290 


should  be  upheld  in  their  observance.  In  so 
far  as  the  Commission  has  adopted  any  rules 
that  pertain  to  the  administrative  features 
or  those  matters  that  are  peculiarly  within 
he  control  of  the  Commission,  the  courts,  we 
apprehend,  will  recognize  its  right  to  do  so. 
But  this  does  not  mean  that  in  our  interpre- 
tation of  the  true  intent  and  purpose  of  the 
act  on  a  pure  question  of  law  we  are  bound 
by  any  ruling  of  the  Commission.  If  so, 
there  would  be  no  purpose  in  the  appeal  to 
the  courts  provided  by  the  act.  Whenever 
the  Industrial  Insurance  Commission  inter- 
prets the  law,  that  interpretation  is  review- 
able  in  the  courts,  and  while  in  any  given 
case,  as  in  this,  the  courts  will  give  due  re- 
spect to  the  rulings  of  the  Commission,  they 
must  finally  act  upon  their  own  determina- 
tion as  to  what  the  law  means  and  the  ex- 
tent to  which  it  is  applicable.  The  rules 
adopted  by  the  Commission  governing  hernia 
cases  are:  (1)  There  must  be  an  accident 
resulting  in  hernia;  (2)  the  hernia  must 
have  appeared  just  following  the  accident ; 
(3)  there  must  have  been  present  pain  at 
the  time;  (4)  the  applicant  must  show  that 
he  did  not  have  hernia  before  the  accident; 


(5)  hernia  coming  on  while  a  man  is  follow- 
ing his  usual  work  is  not  an  accident.  We 
|  see  no  difficulty  in  sustaining  a  recovery  un- 
|  der  these  rules,  the  evidence  in  our  judgment 
j  meeting  every  requirement  here  made.  The 
evidence  takes  the  case  out  of  the  fifth  rule, 
showing,  as  we  have  held,  that  the  hernia 
in  this  case  resulted  from  a  fortuitous  event 
or  accident,  and  is  not  one  appearing  while 
the  workman  was  following  his  usual  work, 
without  accident  or  fortuitous  event  to 
which  the  result  might  be  directly  traceable. 
The  only  error  we  find  in  the  record 
is  the  sending  of  the  case  to  the  jury. 
The  case,  calling  for  an  interpretation  of  the 
language  of  the  act  upon  undisputed  facts, 
was  one  of  law  for  the  court.  But,  inasmuch 
as  the  jury  has  reached  the  proper  conclu- 
sion, we  do  not  feel  that  we  would  be  justi- 
fied in  holding  this  error  so  prejudicial  as  to 
require  a  reversal  of  the  judgment  and  the 
ordering  of  a  new  trial. 

The  judgment  is  sustained. 

Crow,    Ch.    J.,    and    Gose,    Chadvvick, 
and  Parker,  JJ.,  concur. 


WEST     VIRGINIA     COURT     OF     AP- 
PEALS. 

GAETANO    POCCARDI,   Royal    Consul    of 
Italy,  in  Behalf  of  the  Dependent  of  Ca- 
taldo  Greco,   Deceased,  Appt., 
v. 

PUBLIC  SERVICE  COMMISSION,  Respt. 

(—  W.  Va.  — ,  84  S.   E.  242.) 

Appeal  —  from  Public  Service  Commis- 
sion  —  questions  open. 

1.  Under  its  supervisory  power  over  the 
Public  Service  Commission  respecting  its 
administration  of  the  workmen's  compensa- 
tion act  this  court  takes  cognizance  of  the 
questions  of  law  only. 
For  other  cases,  see  "Appeal  and  Error,  VII. 

1,  4j    Public    Service    Commissions,    in 
Dig.  1-52  N.  8. 

Same  —  sufficiency  of  evidence. 

2.  In  the  absence  of  conflict  in  the  evi- 
dence adduced  to  show  a  claimant's  right  to 
participation    in   the   workmen's   compensa- 
tion fund,  the   Commission   is  regarded,  in 
this  court,  as  a  demurrant  to  the  evidence, 
and  if  the  evidence  would  sustain  a  verdict 

Headnotes  by  POFFENBAEGER,  J. 


Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to  whether  hernia   is  an  accident  or 
personal  injury  within  the  meaning  of  the 
workmen's   compensation   acts,   see   annota- 
tion, post,  303. 
L.R.A.1916A. 


of    a    jury    in    favor    of   the    claimant,   the 
claim  is  regarded  as  sufficiently  proved. 
For  other   cases,   see  Evidence,  XII.    b,  in 

Dig.  1-52  N.  8. 
Public  Service  Commission  —  claim  for 

injury  —  inferences. 

3.  It  is  the  duty  of  the  Commission  under 
such  circumstances,  to  give  the  claimant  the 
benefit   of    inferences   arising    in    his   favor 
from   the   facts   proved,   in   the   absence   of 
direct  evidence. 

For  other  cases,  see  Evidence,  XII.  b,  in 
Dig.  1-52  N.  8. 

Master  and  servant  —  workmen's  com- 
pensation —  rupture. 

4.  A  rupture  caused  by  a  strain  while  at 
work    is    an    accident    or    untoward    event 
arising  in   the  course   of  employment,  and 
compensable  under  the  workmen's  compensa- 
tion act. 

For  other  cases,   see   Master  and   Servant, 

II.  a,  1,  in  Dig.  1-52  A7.  8. 
Evidence  —  injury  —  sufficiency. 

5.  Proof  of  apparent  previous  good  health, 
a  heavy  and  unusual   lift  in  the  course  of 
work,   discovery   of   rupture  on   the   second 
day  thereafter,  death  from  surgical  opera- 
tion  for   relief  thereof,  and  opinion   of  the 
operating    surgeon    that    the    rupture    was 
caused    by   the    lifting,    is   sufficient   to   es- 
tablish  accidental   injury   in   the  course  of 
employment,  within  the  meaning  of  said  act. 
For  other  cases,  see  Evidencer  XII.   b,  in 

Dig.  1-52  N.  8. 

(January  26,  1915.) 

APPEAL  by  petitioner  from  an  order  of 
the  Public   Service  Commission   reject- 


300 


WORKMEN'S  COMPENSATION. 


ing  a  claim  for  compensation  under  the 
workmen's  compensation  act,  to  the  widow 
of  Cataldo  Greco,  deceased.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Francis  llawle  and  Joseph  W. 
Henderson,  for  appellant: 

A  court  may  draw  an  inference  from 
proved  facts  where  there  is  no  direct  evi- 
dence of  the  cause  of  death. 

Bender  v.  The  Zent  [1909]  2  K.  B.  41, 
78  L.  J.  K.  B.  N.  S.  533,  100  L.  T.  N.  S. 
639;  Mitchell  v.  Glamorgan  Coal  Co.  23 
Times  L.  R.  588,  9  W.  C.  C.  16;  Clover  v. 
Hughes  [1910]  A.  C.  242,  79  L.  J.  K.  B. 
N.  S.  470,  102  L.  T.  N.  S.  340,  26  Times 
L.  R.  359,  54  Sol.  Jo.  375,  47  Scot.  L.  R. 
885  [1910]  W.  N.  73,  3  B.  W.  C.  C.  275. 

The  injury  was  received  in  the  course  of 
and  resulted  from  the  employment. 

Fenton  v.  Thorley  [1903]  A.  C.  443,  5 
W.  C.  C.  1,  72  L.  J.  K.  B.  N.  S.  787,  52 
Week.  Rep.  81,  89  L.  T.  N.  S.  314,  19  Times 
L.  R.  684. 

Messrs.  A.  A.  Lilly,  Attorney  General, 
and  Frank  Lively,  Assistant  Attorney  Gen- 
eral, for  respondent : 

The  conclusion  of  the  Commission  after 
weighing  the  evidence  is  entitled  to  peculiar 
weight,  and  should  not  be  lightly  set  aside. 

Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl. 
458,  3  N.  C.  C.  A.  585. 

The  burden  of  proof  is  upon  the  claimant 
to  produce  evidence  from  which  the  conclu- 
sion can  be  legitimately  drawn  that  the  in- 
jury was  received  in  the  course  of  employ- 
ment. 

Howe  v.  Fernhill  Collieries  [1912]  W.  C. 
Rep.  408,  107  L.  T.  N.  S.  508,  5  B.  W.  C. 
C.  629. 

Poffenbarger,  J.,  delivered  the  opinion 
of  the  court: 

Gaetano  Poccardi,  royal  consul  of  Italy, 
on  behalf  of  the  widow  of  Cataldo  Greco, 
an  Italian  subject,  and  his  sole  dependent, 
complains  of  an  order  of  the  Public  Service 
Commission  rejecting  her  claim  against  the 
workmen's  compensation  fund. 

Though  a  surgical  operation  for  strangu- 
lated hernia  precipitated  Greco's  death,  the 
legally  proximate  cause  thereof  was  the  her- 
nia. But,  in  the  opinion  of  the  Commission, 
the  hernia  did  not  result  from  accidental 
injury.  Just  before  his  death,  Greco  was 
an  employee  of  the  Phillips  Sheet  &  Tin 
Plate  Company  at  Weirton,  West  Virginia. 
On  the  10th  day  of  April,  1914,  he  and  some 
of  his  fellow  workmen  lifted  a  heavy  iron 
pipe  called  a  "jim  pole."  He  worked  the 
next  day,  but  illness  required  him  to  go 
to  bed  on  Sunday,  the  second  day  after  the 
exertion  to  which  reference  has  been  made, 
where  he  remained  until  April  14,  1914, 
without  attention  from  a  physician.  On 
L.R.A.1916A. 


that  day,  Dr.  L.  A.  Whittaker  was  called. 
Finding  his  condition  serious,  the  doctor 
had  him  removed  to  a  hospital  on  the  15th, 
performed  the  operation  on  the  16th,  and 
the  patient  died  on  the  20th.  A  post  mor- 
tem examination  made  on  the  day  of  the 
death  revealed  dilatation  of  the  right  ven- 
tricle of  the  heart  as  the  immediate  cause 
of  death;  the  wound  showing  no  unfavor- 
able indications.  Weakness  of  the  heart  had 
been  observed  while  he  was  on  the  operat- 
ing table. 

Loney  Marino,  a  fellow  workman,  says 
Greco,  after  carrying  the  "jim  pole"  to  the 
machine  shop,  had  thrown  his  hands  back 
to  his  hips  as  though  he  had  injured  him- 
self. The  man  who  had  charge  of  the  men 
engaged  in  the  removal  of  the  pipe  and  the 
labor  boss  at  the  plant  say  neither  of  them 
heard  any  complaint  of  injury.  A  verified 
certificate  of  the  chief  clerk  of  the  company 
for  which  Greco  had  worked  says  he 
"strained  himself"  in  carrying  the  pipe,  and 
"first  complained  of  his  injury  in  machine 
shop."  It  further  says  "to  the  best  of"  af- 
fiant's knowledge  "the  injury  causing  death 
was  sustained  in  the  course  of  the  de- 
ceased's employment."  A  report  of  the  at- 
tending physician  says  the  hernia  and 
strangulation  were  "brought  on  by  lifting 
jim  pipe  in  mill,  overworking."  He  further 
reports  specifically  that  the  disability  was 
due  to  the  accident  previously  mentioned  by 
him,  and  that  Greco  had  not  been  maimed 
or  crippled  by  previous  injury. 

After  the  claim  had  been  rejected,  the  ap- 
plicant filed  a  letter  from  Dr.  Whittaker, 
directed  generally  to  whom  it  may  concern, 
saying  Greco  had  been  injured  in  the  course 
of  his  employment.  He  further  said  that, 
at  the  time  of  his  investigation,  he  had 
understood  him  to  say,  through  an  inter- 
preter, that  he  had  been  ruptured  previous- 
ly, but  was  now  assured  by  the  interpreter 
that  he  had  misunderstood  him.  This  seems 
to  have  been  considered  as  upon  an  appli- 
cation to  reopen  or  rehear  the  case.  The 
Commission  was  notified  that  several  per- 
sons who  had  known  the  decedent  were 
ready  to  testify  to  his  previous  good  health. 
A  joint  affidavit  of  these  persons  to  the  fact, 
and  also  one  made  by  three  other  persons 
to  the  effect  that  he  had  complained  of  ab- 
dominal discomfort  immediately  after  the 
lifting  of  the  pipe,  seem  to  have  been  taken, 
but,  if  so,  they  were  not  filed  with  the  Com- 
mission at  any  time,  nor  in  this  court. 
What  purport  to  be  copies  of  such  affidavits 
appear  only  in  the  brief  of  counsel  for  the 
petitioner.  If  such  affidavits  exist,  it  is 
not  perceived  how  they  can  be  considered 
here;  they  never  having  been  filed  in  the 
proceeding  in  any  manner  or  at  any  stage 
thereof. 


POCCARDI  v.  PUBLIC  SERVICE  COMMISSION. 


301 


Meager  development  of  the  merits  of 
the  case  before  the  Commission  justifies,  in 
the  opinion  of  some  of  the  members  of  the  , 
court,  refusal  of  the  prayer  of  the  petition- 
er. No  doubt  the  operating  surgeon  could 
have  determined  whether  the  rupture  was 
an  old  one  or  the  result  of  disease,  or  a 
fresh  wound  occasioned  by  a  strain.  As  to 
the  appearance  of  the  wound,  no  inquiry 
seems  to  have  been  propounded  to  him, 
wherefore  the  evidence  lacks  detail  and  par- 
ticularity, which  no  doubt  could  have  been 
supplied.  One  or  more  of  the  members  of 
the  court  entertain  the  view  that  the  evi- 
dence is  defective  in  form  and  character, 
justifying  rejection  on  the  ground  of  fail- 
ure on  the  part  of  the  applicant  to  develop 
the  facts.  A  further  suggestion  is  that  the 
finding  of  the  Commission  is  of  equal  dig- 
nity with  the  verdict  of  a  jury,  and  cannot 
be  disturbed  unless  plainly  wrong. 

The  action  of  the  Commission  is  final  and 
irreviewable,  except  as  to  matters  "going 
to  the  basis  of  the  claimant's  right."  Code 
chap.  15p,  §  43,  serial  §  699.  As  to  such 
matters,  its  function  is  administrative,  only 
quasi  judicial,  and  the  supervisory  power 
of  this  court  over  its  action  respecting  the 
right  of  the  claimant  is  under  its  original 
jurisdiction  by  mandamus.  De  Constantin 
v.  Public  Service  Commission,  --  W.  Va. 
— ,  post,  329,  83  S.  E.  88.  In  this  respect, 
our  statute  accords  with  the  English  com- 
pensation act  and  those  of  several  of  the 
states,  limiting  the  power  of  review  to  ques- 
tions of  law.  Gane  v.  Norton  Hill  Colliery 
Co.  []909]  2  K.  B.  539,  78  L.  J.  K.  B.  N.  S. 
921,  100  L.  T.  N.  S.  979,  25  Times  L.  R. 
640,  2  B.  W.  C.  C.  42;  Turner  v.  Bell,  4  B. 
W.  C.  C.  63;  Moss  v.  Akers,  4  B.  W.  C.  C. 
294;  Illinois  act  (Kurd's  Rev.  Stat.  1913, 
chap.  48)  §  19;  Iowa  act  (Acts  35th  Gen. 
Assem.  chap.  147)  §  34;  Massachusetts  act 
(Stat.  1911,  chap.  751)  pt.  3,  §§  10,  11; 
Michigan  act  (Pub.  Acts  1912,  No.  10)  pt. 
3,  §§  11,  12,  13;  Minnesota  act  (Gen.  Stat. 
1913,  §§  8216,  8225)  §§  22,  30;  Bradbury, 
Workmen's  Compensation,  chap.  16,  pp. 
892  et  seq. 

Under  the  English  act,  the  courts  regard 
the  employer,  whose  place,  under  our  stat- 
ute, the  Commission  takes,  as  a  demurrant 
to  the  evidence,  when  the  issue  is  one  of 
mere  sufficiency  thereof.  If  the  evidence  ad- 
duced or  the  facts  found  or  disclosed  are 
uncontradicted,  and  would  sustain  a  verdict 
of  a  jury  in  favor  of  the  claimant,  there 
is  liability  as  a  matter  of  law,  and  legal 
duty  to  pay  the  claim  arises.  Mitchell  v. 
Glamorgan  Coal  Co.  23  Times  L.  R.  588; 
9  W.  C.  C.  16;  Wright  v.  Kerrigan  [1911} 
2  I.  R.  301,  45  Ir.  Law  Times,  82,  4  B.  W. 
C.  C.  432;  The  Swansea  Vale  v.  Rice,  104 
L.  T.  N.  S.  658,  27  Times  L.  R.  440,  55  Sol. 
L.R.A.1916A. 


Jo.  497,  48  Scot.  L.  R.  1095,  4  B.  W.  C. 
298.  What  rule  would  govern  in  a  case  of 
conflicting  evidence,  it  is  unnecessary  to 
say,  since  the  evidence  adduced  here  is  free 
from  conflict.  All  of  it  points  in  the  same 
direction,  and  the  only  question  is  the 
weight  to  which  inferences  arising  from  the 
facts  are  entitled. 

The  written  opinion  adopted  by  the  Com- 
mission rests  largely  upon  the  sound  legal 
proposition  that  evidence  giving  rise  to  in- 
ferences consistent  with  the  theory  of  liabil- 
ity and  inconsistent  therewith,  in  equal  de- 
gree, is  insufficient.  An  illustration  of  such 
evidence  is  found  in  Hawkins  v.  Powells 
Tillery  Steam  Coal  Co.  [1911]  1  K.  B.  988, 
80  L.  J.  K.  B.  N.  S.  769,  104  L.  T.  N.  S. 
365,  27  Times  L.  R.  282,  55  Sol.  Jo.  329,  4 

B.  W.  C.  C.  178.     A  workman  whose  heart 
was  shown  to   have  been   in   bad  condition 
collapsed  while  at  work,  and  died  of  angina 
pectoris.    The  court  held  the  two  facts  (col- 
lapse   while    at    work    and    disease    of    the 
heart)    rendered  the  cause  of  death  uncer- 
tain ;    the   inferences   arising  being   equally 
consistent   with   the   theory   of   death   from 
accident  and  death  from  disease.     A  collier 
having   highly    diseased    arteries,    threaten- 
ing apoplexy   at  any   time   and   under   any 
conditions,     was     attacked     with     apoplexy 
while  at  work,  and  died.     Here  likewise  the 
court  held  the  evidence  insufficient.     Barna- 
bas v.  Bersham  Colliery  Co.  102  L.  T.  N.  S. 
621,  3  B.  W.  C.  C.  216.  There  were  like  hold- 
ings in  the  case  of  a  man  who  had  under- 
gone two  successive  surgical  operations  (am- 
putation of  a  finger  injured  while  at  work, 
and  another  for  a  diseased  tooth)   and  died 
from  the  effect  of  the  anesthetics   (Charles 
v.   Walker,   25   Times  L.   R.   609,   2   B.    W. 

C.  C.   5 ) ,   and   a  sailor  found  dead   in  the 
water  in  the  morning,  after  having  gone  on 
deck,  late  at  night,  to  get  fresh  air   (Davis 
v    Hill's  Plymouth  Colliery,  3  B.  W.  C.  C. 
514).     In  each  of  these  cases,  directly  con- 
tradictory    inferences     arose     from     facts 
proven. 

In  the  absence  of  such  contradiction,  how- 
ever, the  probability  arising  from  the  facts 
disclosed  governs  and  concludes.  A  night 
workman  who  had  gone  to  his  work,  a  mile 
or  more  distant,  in  the  evening,  sound  and 
well,  came  back  in  the  morning  at  the  usual 
hour,  in  his  working  clothes  and  with  a 
finger  crushed  and  bleeding,  unwashed,  and 
wrapped  in  a  rag.  Continuing  his  work, 
blood  poison  set  in,  and  he  died.  The  coun- 
ty judge  held  his  widow  had  not  proved 
a  case,  and  said  the  accident  might  have 
occurred  in  the  walk  from  the  colliery.  But 
the  appellate  court,  reversing,  said:  "The 
workman  was  engaged  in  work  at  which 
accidents  do  happen,  and  the  probability 
therefore  is  that  the  accident  happened  at 


302 


WORKMEN'S  COMPENSATION. 


the  time  when  he  was  so  engaged,  rather 
than  at  a  time  when,  in  the  ordinary  course 
of  life,  such  accidents  do  not  happen. 
There  is  nothing  to  suggest  here  that  the 
accident  happened  on  the  way  home."  Mit- 
chell v.  Glamorgan  Coal  Co.  cited. 

A  man  whose  duty  it  was  to  lift  coffins 
went  to  work  apparently  well,  and,  on  re- 
turning, complained  of  having  been  hurt 
and  had  marks  on  his  side  and  chest  and  a 
swollen  leg.  He  died  about  a  week  later  of 
pneumonia  superinduced  by  the  injury. 
There  was  no  proof  as  to  how  he  was  in- 
jured, except  a  statement  to  his  physician 
that  he  had  "met  with  an  accident  by  mov- 
ing a  coffin."  The  court,  in  dismissing  the 
appeal,  said:  "So  far  we  have,  at  any 
rate,  the  fact  that  one  coffin  went  out,  and 
that  it  would  be  the  duty  of  the  deceased 
to  assist  in  removing  it,  and  the  doctor's 
evidence  is  consistent  with  the  fact  that 
something  like  a  coffin  fell  upon  him.  .  .  . 
This  man,  whose  employment  was  lifting 
coffins,  went  out  well,  and  came  home,  as 
we  have  heard,  with  marks  and  injuries 
upon  him.  In  these  circumstances,  it 
strikes  me  that  the  inferences  drawn  in  the 
Glamorgan  Case  may  be  drawn  here.  In 
that  case  the  man's  finger  might  have  been 
crushed  in  many  ways."  Wright  v.  Kerri- 
gan, cited. 

This  principle  applies  as  well  to  the  as- 
certainment of  the  times  and  causes  of  in- 
ternal injuries,  such  as  ruptures.  Here,  as 
in  many  other  instances  in  the  administra- 
tion of  the  laws,  the  right  is  not  susceptible 
of  complete  and  certain  demonstration,  and 
probability,  which,  ex  vi  termini,  is  evi- 
dence, must  take  its  place  as  inconclusive, 
but  nevertheless  dependable,  proof.  In  one 
of  the  most  notable  English  cases  decided 
apparently  by  the  House  of  Lords,  the  de- 
cision of  the  county  judge,  denying  right  of 
compensation  for  a  rupture,  affirmed  by  the 
court  of  appeal,  was  reversed  and  the  case 
remanded  for  ascertainment  of  the  amount 
of  compensation.  Fenton  v.  Thorley,  5  W. 
C.  C.  1.  In  that  case  Lord  Lindley  said: 
"The  personal  injury  was  the  rupture.  The 
cause  of  it  was  the  unintended  and  unex- 
pected resistance  of  the  wheel  to  the  force 
applied  to  it.  ...  The  proximate  cause 
may  be  an  internal  strain." 

In  Fulford  v.  Northfleet  Coal  &  Ballast 
Co.  1  B.  W.  C.  C.  222,  compensation  for  in- 
jury by  rupture  was  awarded  to  a  man 
who  had  a  previously  existing  rupture,  on 
the  theory  that  it  had  been  so  increased 
by  a  strain  as  to  incapacitate  him.  The 
court  said :  "I  think,  regarding  the  case 
solely  from  the  medical  aspect,  the  injury 
could  not  have  been  an  untoward  event  not 
expected.  On  the  other  hand,  the  man  had 
worked  in  the  chalk  quarry  for  six  months 
L.R.A.1916A. 


and  had  dug  out  lumps  of  chalk  quite  as 
large  as  the  one  in  question  without  in- 
jury, notwithstanding  the  strain  he  was 
suffering  from,  and,  as  far  as  he  or  anyone 
without  medical  or  surgical  knowledge  was 
concerned,  the  injury  was  occasioned  by 
means  of  a  mishap  or  untoward  event  not 
expected  or  designed." 

In  Scales  v.  West  Norfolk  Farmers'  Ma- 
nure &  Chemical  Co.  [1913]  W.  C.  &  Ins. 
Rep.  165,  6  B.  W.  C.  C.  188,  it  appeared  the 
deceased  had  been  ruptured  three  or  four 
years  before  the  strangulation  causing  his 
death,  but  the  court  held  a  strain  or  over- 
exertion  in  the  course  of  employment  was 
the  proximate  cause  of  death  and  an  acci- 
dent, within  the  meaning  of  the  act.  Brown 
v.  Kemp  [1913]  W.  C.  &  Ins.  Rep.  595, 
6  B.  W.  C.  C.  725,  was  a  similar  case, 
and  in  it  compensation  was  awarded. 

Responding  to  medical  criticism  of  the 
theory  of  rupture  by  strain  or  exertion,  the 
Washington  Industrial  Insurance  Commis- 
sion has  adopted  rules  requiring  proof  in 
cases  of  claims  predicated  on  hernia:  (1) 
That  its  origin  was  recent;  (2)  that  it 
was  accompanied  by  pain ;  ( 3 )  that  it  was 
immediately  preceded  by  accidental  strain 
in  hazardous  employment;  and  (4)  that  it 
did  not  previously  exist.  Similar  rules  have 
been  adopted  by  the  Commission.  Notwith- 
standing the  criticism  calling  forth  these 
rules,  they  impliedly  admit  possibility  and 
probability  of  rupture  from  a  strain,  when 
the  strain  and  the  rupture  are  in  close  re- 
lation. So  does  an  article  by  the  attorney 
for  the  Michigan  Compensation  Board,  pub- 
lished in  the  National  Compensation  Jour- 
nal, brought  to  our  attention  by.  the  brief 
for  the  Commission.  Both  the  rules  and  the 
thesis  admit  the  English  proposition  that 
an  internal  injury  resulting  from  a  strain 
while  at  work  is  an  accident,  within  the 
meaning  of  the  act,  and  their  limitations 
or  restrictions  upon  proof  of  the  fact  have 
not  been  judicially  approved. 

Under  the  decisions  to  which  reference 
has  been  made,  the  circumstances  stated, 
if  sufficiently  proved,  make  out  a  prima 
facie  case  of  right  to  participation.  Greco 
had  worked  for  his  employer  more  than  two 
months.  There  is  no  proof  of  any  ante- 
cedent infirmity  of  any  kind  on  his  part. 
In  his  employment,  he  was  subjected  to 
unusual  physical  exertion  on  Friday.  He 
took  to  his  bed  on  Sunday,  and  his  ailment 
proved  to  be  hernia.  The  surgeon  who  oper- 
ated upon  him  and  saw  the  rupture  had  no 
personal  knowledge  of  the  exertion,  but  was 
informed  as  to  that  fact.  If  a  competent 
physician  and  surgeon,  he  was  likely  able 
to  tell,  from  his  inspection,  whether  the  rup- 
ture was  of  recent  origin.  Having  inspect- 
ed it,  and  knowing  from  others  what  the 


POCCARDI  v.  PUBLIC  SERVICE  COMMISSION. 


303 


patient  had  previously  done,  he  gave  it,  as 
his  opinion,  that  the  injury  had  resulted 
from  strain  in  lifting  the  pipe.  Support  of 
his  conclusion  is  found  in  the  known  facts, 
previous  ability  to  work,  the  exertion,  and 
the  rupture.  Failure  of  the  injury  to  cause 
serious  discomfort  until  the  .second  day 
after  its  occurrence  does  not  negative  the 
inference  arising  from  these  facts.  "Some- 
times there  is  complete  absence  of  pain  and 
tenderness  in  the  hernia  itself."  Enc.  Brit- 
annica.  The  article  brought  to  our  atten- 
tion in  the  brief  says  traumatic  hernia  com- 
pletely develops  immediately  or  in  a  day 
or  two  after  the  blow.  Common  sense  sug- 
gests that  a  rupture  from  a  strain  might 
develop  more  slowly  than  one  caused  by  a 
blow. 


The  case  has  been  very  poorly  developed. 
No  effort  by  the  applicant  strictly  to  prove 
the  claim  was  made  until  after  its  rejection. 
He  relied  upon  the  result  of  the  Commis- 
sion's investigation,  and  apparently  was  not 
advised  of  the  supposed  insufficiency  of  the 
evidence  before  the  finding  and  announce- 
ment of  the  result.  Then,  although  an  in- 
formal rehearing  seems  to  have  been  al- 
lowed, no  new  evidence  of  consequence  was 
filed.  The  suggestion  here  of  additional 
proof  is  utterly  futile.  However,  the  facts 
disclosed  by  the  record  establish  the 
claim. 

Accordingly  an  order  will  be  entered  re- 
quiring the  Commission  to  ascertain  the 
amount  of  the  indemnity  and  cause  it  to  be 
paid. 


Annotation — Hernia  as   an    "accident"   or   "personal   injury"   within   the 
meaning  of  the  compensation  act. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

All  of  the  cases  now  take  the  position 
that  a  hernia  caused  by  a  strain  or  exer- 
tion of  some  kind  while  the  workman  is 
acting  within  the  scope  of  his  employ- 
ment is  an  "accident"  or  a  "personal 
injury"  within  the  meaning  of  the  com- 
pensation acts,  for  which  compensation  is 
recoverable. 

In  addition  to  POCCARDI  v.  PUBLIC  SERV- 
ICE COMMISSION  and  ZAPPALA  v.  INDUS- 
TRIAL INS.  COMMISSION  the  question  has 
been  passed  upon  by  but  one  other  Am- 
erican court. 

Thus,  a  workman's  death  may  be  found 
to  be  due  to  an  accident  where,  although 
there  was  some  evidence  pointing  to  can- 
cer, a  rupture  occurred  while  the  work- 
man was  in  the  very  act  of  doing  some 
heavy  work;  namely,  furrowing  heavy 
posts,  by  pushing  them  forward  against 
the  knives  of  a  machine  by  pressing  his 
abdomen  forcibly  against  the  end  thereof. 
Voorhees  v.  Smith  Schoonmaker  Co. 
(1914)  86  N.  J.  L.  500,  82  Atl.  280,  7 
N.  C.  C.  A.  646. 

The  decision  by  the  House  of  Lords  in 
Fenton  v.  J.  Thorley  &  Co.  [1903]  A.  C. 
(Eng.)  443,  72  L.  J.  K.  B.  N.  S.  87,  52 
Week.  Rep.  81,  89  L.  T.  N.  S.  513,  9 
Times  L.  R.  684,  5  W.  C.  C.  1,  that  a 
rupture  caused  by  overexertion  in  at- 
tempting to  turn  a  wheel  is  an  accident, 
settled  the  question  under  the  English 
act. 

Some  of  the  earlier  decisions  in  Eng- 
land were  to  the  contrary;  but  these 
must  now  .be  considered  as  overruled. 
Roper  v.  Greenwood  (1901)  83  L.  T.  N. 
L.R.A.1916A. 


S.  (Eng.)  471;  Perry  v.  Baker  (1901; 
C.  C.)  3  W.  C.  C.  (Eng.)  29. 

A  rupture  caused  by  the  effort  of  sep- 
arating a  plank  from  one  to  which  it  was 
stuck  by  ice  formed  during  the  preced- 
ing night  may  properly  be  found  to  have 
been  caused  by  accident.  Timmins  v. 
Leeds  Forge  Co.  (1900)  16  Times  L.  R. 
(Eng.)  521,  83  L.  T.  N.  S.  120. 

Compensation  is  recoverable  for  in- 
capacity-caused by  hernia,  although  the 
workman  had  previously  suffered  from 
a  slight  hernia,  and  the  accident  in  ques- 
tion merely  aggravated  its  consequences. 
Brown  v.  'Kemp  (1913)  6  B.  W.  C.  C. 
(Eng.)  725;  Fulford  v.  Northfleet  Coal 
&  Ballast  Co.  (1907;  C.  C.)  1  B.  W.  C. 
C.  (Eng.)  222. 

Where  a  workman  suffered  an  accident 
which  caused  a  rupture  and  necessitated 
an  operation,  and  at  the  time  of  the 
operation  an  old  hernia  was  also  opera- 
ted upon,  and  the  workman  died  eight 
months  after,  having  shown  signs  of 
heart  failure  soon  after  the  operation, 
the  arbitrator  may  find  that  the  death 
resulted  from  the  accident,  where  the 
medical  evidence  indicated  that  in  order 
properly  to  operate  for  the  second  rup- 
ture, the  first  one  must  also  be  operated 
for.  Mutter  v.  Thomson  (1913)  W.  C. 
&  Ins.  Rep.  241,  [1913]  S.  C.  619,  50 
Scot.  L.  R.  447,  6  B.  W.  C.  C.  424. 

A  man  employed  as  a  stoker,  who  had 
been  ruptured  three  or  four  years  before, 
and  was  wearing  a  truss  sufficient  to  pre- 
vent strangulated  hernia  under  ordinary 
circumstances,  who  left  home  well  and 
in  excellent  spirits,  and  shortly  after  his 
return  to  work  was  found  to  be  in  great 
agony,  and  died  shortly  afterward  from 


304 


WORKMEN'S  COMPENSATION . 


strangulated  hernia,  may  be  found  to  be 
suffering  from  injury  by  accident  arising 
out  of  the  employment,  although  there 
was  no  evidence  as  to  how  the  hernia 
came  down  so  as  to  strangulate,  nor  of 


any  specially  heavy  work  done  by  the 
deceased  to  account  for  it.  Scales  v. 
West  Norfolk  Farmers'  Manure  &  Chem- 
ical Co.  (1913)  W.  C.  &  Ins.  Rep.  (Eng.) 


165,  6  B.  W.  C.  C.  188. 


W.  M.  G. 


MASSACHUSETTS     SUPREME    JUDI- 
CIAL COURT. 

RE  ALMA  REITHEL,  Widow   of  Erhardt 
Reithel,  Employee. 

PONDVILLE  WOOLEN  MILLS,  Employer. 

EMPLOYERS'    LIABILITY    ASSURANCE 
CORPORATION,  Limited,  Appt. 

(_  Mass.  — ,  109  N.  E.  951.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  injury  by  bullet. 

Injury  inflicted  upon  the  superintendent 
of  a  mill,  whose  duty  is  to  order  trespassers 
from  the  premises,  by  a  shot  fired  by  a 
trespasser  to  whom  he  gives  such  order, 
arises  out  of  and  in  the  course  of  his  em- 
ployment within  the  operation  of  a  work- 
men's compensation  act ;  at  least,  where  he 
has  received  special  instructions  from  a 
superior  to  order  out  the  trespasser  in  ques- 
tion and  call  the  police  to  his  assistance. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  in  Dig.  1-52  N.  8. 

(October  18,  1915.) 

A  PPEAL  by  the  insurer  from  a  decree  of 
J\.  the  Superior  Court  for  Worcester  Coun- 
ty in  petitioner's  favor  upon  a  finding  of 
the  Industrial  Accident  Board  affirming  a 
finding  of  the  Committee  of  Arbitration  in 
a  proceeding  by  petitioner  under  the  work- 
men's compensation  act  to  recover  compen- 
sation for  the  death  of  her  husband. 
Affirmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Charles  C.  Milton  and  Frank 
L.  Riley  for  appellant. 

Messrs.  Thayer,  Drury,  &  Walker,  for 
appellee: 

The  industrial  accident  board  was  war- 
ranted in  finding  that  the  injury  to  Reithel 
arose  out  of  his  employment. 

McNicol's  Case,  215  Mass.  497,  post,  306, 
102  N.  E.  697,  4  N.  C.  C.  A.  522;  Craske 
v.  Wigan  [1909]  2  K.  B.  635,  78  L.  J.  K. 
B.  N.  S.  994,  100  L.  T.  N.  S.  8,  25  Times 
L.  R.  632,  2  B.  W.  C.  C.  35;  Barnes  v. 
Nunnery  Colliery  Co.  [1910]  W.  N.  248, 
45  L.  J.  N.  C.  757,  4  B.  W.  C.  C.  43; 


Note.  —  As  to  the  construction  and  ap- 
plication of  the  workmen's  compensation 
acts  generally,  see  annotation,  ante.  23. 

As   to   whether   compensation   is  recover- 
able  for   incapacity   caused   by  an   assault, 
see  annotation,  post,  309. 
L.R.A.1916A. 


Plumb   v.    Cobden   Flour   Mills   Co.    [1914] 

A.  C.   62,   83   L.  J.   K.   B.   N.   S.    197,   109 
L.   T.   N.   S.   759,   30  Times  L.   R.   174,   58 
Sol.  Jo.   184,   51   Scot.  L.   R.  861,   7   B.  W. 
C.    C.    1;    Fitzgerald    v.    Clarke    [1908]    2 
K.   B.   796,   77   L.   J.   K.   B.  N.  S.   1018,  99 
L.    T.    N.    S.    101;    Andrew    v.    Failsworth 
Industrial   Soc.    [1904]    2   K.   B.   32,   73   L. 
J.   K.    B.   N.   S.   510,   90   L.   T.   N.   S.   611, 
52    Week.    Rep.    451,     68    J.    P.    409,    20 
Times   L.   R.  429,   6   W.   C.   C.   11;    Bryant 
v.    Fissell,    84    N.    J.    L.    72,    86    Atl.    458, 
3   N.   C.   C.   A.   585;    State  ex   rel.   Duluth 
Brewing    &    Malting    Co.    v.    District    Ct. 
129    Minn.    176,    151    N.   W.   912;    Hopkins 
v.   Michigan   Sugar   Co.  —  Mich.   — ,  post, 
310,   150  N.   W.   325;    Anderson  v.   Balfour 
[1910]   2  I.  R.  497,  44  Ir.  Law  Times,  168, 
3  B.  W.  C.  C.  588;  Trim  Joint  Dist.  School 
v.  Kelly   [1914]   A.  C.  667,  83  L.  J.  P.   C. 
N.  S.   220,  30  Times  L.  R.  452,   111  L.  T. 
N.   S.  305,  48  Ir.  Law  Times,  141,  58  Sol. 
Jo.    493,    7    B.    W.    C.    C.   274;    Manson   v. 
Forth  &  C.  S.  S.  Co.   [1913]   S.  C.  921,  50 
Scot.  L.  R.  687,  6  B.  W.  C.  C.  830 ;   Shaw 
v.  Macfarlane,  52  Scot.  L.  R.  236,  8  B.  W. 
C.   C.   382;   Bett  v.  Hughes,  52  Scot.  L.  R. 
93,   8   B.   W.   C.   C.   362;    Milwaukee  v.  In- 
dustrial   Commission,    160    Wis.    238,    151 
N.   W.   247;    Brightman's   Case,   220   Mass. 
17,  post,  321,  107  N.  E.  527,  8  N.  C.  C.  A. 
102;  Sponatski's  Case,  220  Mass.  526,  post, 
333,  108  N.  E.  466,  8  N.  C.  C.  A.  1025;  Blair 
&  Co.  v.  Chilton  [1915]  W.  N.  203,  84  L.  J. 
K.  B.  N.  S.  1147,  [1915]  W.  C.  &  Ins.  Rep. 
283,   31   Times   L.   R.  437,   8   B.   W.   C.    C. 
324;   Nisbet  v.  Rayne   [1910]   2  K.  B.  689, 
80  L.  J.  K.  B.  N.  S.  84,  103  L.  T.  N.  S.  178, 
26    Times    L.    R.    632,    54    Sol.    Jo.    719,    3 

B.  W.  C.  C.  507 ;  Challis  v.  London  &  S.  W. 
R.  Co.   [1905]   2  K.  B.  154,  74  L.  J.  K.  B. 
N.  S.  569,  53  Week.  Rep.  613,  93  L.  T.  N. 
S.  330,  21  Times  L.  R.  486;  Thorn  v.  Humm 
[1915]   W.   C.   &   Ins.   Rep.   224,   112   L.   T. 
N.  S.  888,  31  Times  L.  R.  194,  8  B.  W.  C. 

C.  190. 

Rugg,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

The  deceased  employee,  Erhardt  Reithel, 
was  employed  as  superintendent  of  a  wool- 
en mill.  It  was  a  part  of  his  duty  to  order 
from  the  premises  of  the  subscriber  any  per- 
son or  persons  who  entered  without  per- 
mission. During  his  employment  he  had 
directed  a  considerable  number  of  such 


RE  REITHEL. 


305 


people    to    leave    the   mill.      One    Bombard  .  sion   was   of   sufficient   importance  to   form 
entered  the  premises  of  the  subscriber  with-  t  the    subject    of    a    report    by    the    superin- 


out  permission  in  June,  1914,  interviewed 
and  annoyed  an  employee  named  Mrs.  King, 
and  created  a  disturbance.  Reithel  as  su- 
perintendent ordered  him  to  leave,  and  he 
'did  as  directed.  This  occurrence  was  re- 
ported to  the  manager  of  the  mill,  who 
instructed  Reithel,  if  Bombard  again  ap- 
peared on  the  premises  to  order  him  out, 
and  if  he  did  not  go,  to  send  for  the  police 
authorities.  The  finding  of  the  industrial 
accident  board  proceeds  as  follows:  "Bom- 
bard appeared  again  on  July  9,  1914,  hav- 
ing a  revolver  in  his  possession,  and  engaged 
Mrs.  King  in  conversation.  He  finally 
threatened  Mrs.  King  with  the  revolver  and 
she  sent  another  employee,  Provost,  to  the 
superintendent  with  a  request  that  Bom- 
bard be  ordered  from  the  premises.  In  this 
connection,  the  evidence  shows  that  a 
daughter  of  the  superintending  employee 
also  informed  him  that  Bombard  had  a 
revolver  and  was  going  to  shoot  Mrs.  King. 
'For  God's  sake,  go  and  tend  to  that  man,' 
she  urged.  The  superintendent  thereupon 
walked  towards  Bombard,  made  a  motion 
towards  the  door,  directing  him  to  go  out. 
Bombard  immediately  discharged  the  re- 
volver at  the  superintendent,  fatally  injur- 
ing him,  and  afterwards  shot  at  the  em- 
ployee's daughter  and  Mrs.  King. 

This  finding  presents  a  case  of  wholly  un- 
provoked murder.  The  question  is  whether 
this  personal  injury  was  one  "arising  out 
of  and  in  the  course  of"  the  employment 
of  Reithel.  Plainly  it  arose  in  the  course 
of  his  employment.  It  came  upon  him 
while  he  was  doing  his  duty  in  the  place 
and  manner  required  by  his  contract  of 
hire. 

The  only  point  of  difficulty  is  whether  it 
also  arose  out  of  the  employment.  The  In- 
dustrial Accident  Board  has  found  that  it 
did.  The  facts  are  not  in  dispute.  The 
question  to  be  decided  is  whether  as  matter 
of  law  this  finding  was  erroneous. 

The  employee  was  the  superintendent  of 
a  mill.  It  was  a  part  of  his  general  duty 
to  order  trespassers  from  the  premises.  In 
this  respect  he  was  required  to  deal  with 
those  more  or  less  heedless  of  the  rights 
of  others  in  their  conduct.  Superimposed 
upon  this  general  obligation  resting  on  him 
by  reason  of  his  contract  of  employment 
was  a  special  one  respecting  Bombard.  It 
came  into  existence  because  Bombard  on 
some  occasion  within  a  few  weeks  before 
the  event  in  question  had  been  upon  the 
premises  of  the  employer.  He  had  come 
as  a  trespasser,  he  had  annoyed  a  woman 


*o.     Commonly  such  precau- 
taken    nor    such    directions 


tendent  to  his  superior,  the  manager  of  the 
factory.  In  view  of  these  circumstances, 
the  employee  was  given  a  special  direction 
respecting  Bombard.  His  duty  was  defined 
in  this  particular.  He  was  to  be  ordered 
out,  and  the  police  were  to  be  summoned 
if  he  did  not  ; 
tions  are  not 
given  respecting  the  ordinary  trespasser. 
They  indicate  that  the  employer  and  em- 
ployee realized  that  they  were  dealing  with 
a  maker  of  trouble  who  was  or  might  be 
generally  lawless  in  his  conduct,  and  who 
must  be  treated  accordingly  for  the  se- 
curity of  property  and  the  safety  of  em- 
ployees and  others  who  might  be  upon  the 
premises.  The  liability  to  whatever  per- 
sonal injury  might  be  likely  to  arise  in 
dealing  with  such  a  person  was  therefore 
within  the  contemplation  of  the  employer 
and  employee  in  establishing  the  bounda- 
ries of  the  latter's  duty.  That  became  a  risk 
of  the  employment.  It  is  not  usual  for 
people  with  whom  a  mill  superintendent 
comes  in  contact  to  commit  crime.  Conduct 
of  that  sort  is  not  to  be  presumed  nor  com- 
monly expected.  Danger  of  being  assaulted 
is  not  the  usual  concomitant  of  work.  But 
when  a  special  duty  arises  to  deal  with  one 
who  is  a  trespasser,  an  annoyer  of  a  woman 
employee,  and  a  creator  of  disturbance, 
then  a  corresponding  special  risk  of  per- 
sonal violence  arises.  That  duty  and  that 
risk  then  become  correlative.  It  hardly 
can  be  said  as  matter  of  law,  under  these 
circumstances,  that  danger  of  assault  from 
such  a  creator  of  disturbance  as  Bombard 
was  not  incidental  to  the  doing  of  that 
which  Reithel's  contract  of  employment 
required  of  him.  An  element  inherent  in 
the  performance  of  the  duty  of  excluding 
trespassers  from  property  and  mischief- 
makers  from  the  company  of  employees  is 
that  there  may  be  some  degree  of  violence 
encountered.  Those  required  to  deal  with 
lawless  persons  may  be  treated  with  law- 
lessness. The  precise  form  which  that  risk 
may  take  is  not  of  consequence.  Its  un- 
expectedness and  gravity  are  not  the  test. 
Sponatski's  Case,  220  Mass.  526,  post,  333, 
108  N.  E.  466,  8  N.  C.  C.  A.  1025.  That 
murder  resulted  instead  of  a  broken  bone  is 
of  slight,  if,  indeed,  it  is  of  any,  signifi- 
cance. This  injury  was  one  to  which  the 
employee  was  exposed  by  reason  of  his  em- 
ployment, and,  but  for  the  special  duty 
imposed  on  him  respecting  Bombard,  he 
would  not  have  been  in  the  way  of  receiving 
it.  The  causative  danger  was  peculiar  to 


employee,  and  he  had  created  a  disturbance.  ]  his  work.  It  was  incidental  to  the  char- 
It  thus  had  appeared  that  he  was  a  dis-  acter  of  the  employment,  and  not  independ- 
orderly  person.  His  conduct  on  that  occa-  ent  of  the  relation  of  master  and  servant. 
L.R.A.1916A.  20 


306 


WORKMEN'S  COMPENSATION. 


Although  unforeseen,  and  the  consequence 
of  what  on  this  record  appears  to  have 
been  a  crime  of  the  highest  magnitude,  yet 
now,  after  the  event,  it  appears  to  have  had 
its  origin  in  a  hazard  connected  with  the 
employment,  and  to  have  flowed  from  that 
source  as  a  rational  consequence.  Tried  by 
the  test  suggested  in  McNicol's  Case,  215 
Mass.  497,  499,  infra,  306,  102  N.  E.  697, 
4  N.  C.  C.  A.  522,  the  injury  seems  to  have 
arisen  in  the  course  of  the  employment. 

Under  our  workmen's  compensation  act 
it  is  not  required  that  the  injury  be  also 
an  accident,  differing  in  this  respect  from 
the  English  act,  and  being  more  liberal  to 
the  employee.  But  even  under  the  English 
act,  in  the  present  case  the  dependent  would 
be  awarded  compensation.  Trim  Joint 
Dist.  School  v.  Kelly  [1914]  A.  C.  667,  83 
L.  J.  P.  C.  N.  S.  220,  30  Times  L.  R.  452, 
111  L.  T.  N.  S.  305,  48  Ir.  Law  Times  141, 


58  Sol.  Jo.  493;  Nisbet  v.  Rayne  [1910] 
2  K.  B.  689,  80  L.  J.  K.  B.  N.  S.  84,  103 
L.  T.  N.  S.  178,  26  Times  L.  R.  632,  54  Sol. 
Jo.  719,  3  B.  W.  C.  C.  507;  Anderson  v. 
Balfour  [1910]  2  I.  R.  497,  44  Ir.  Law 
Times  168,  3  B.  W.  C.  C.  588;  Challis  v. 
London  &  S.  W.  R.  Co.  [1905]  2  K.  B.  154,' 
74  L.  J.  K.  B.  N.  S.  569,  53  Week.  Rep.  613, 
93  L.  T.  N.  S.  330,  21  Times  L.  R  486; 
Weekes  v.  Stead  [1914]  W.  N.  263,  83 
L.  J.  K.  B.  N.  S.  1542,  111  L.  T.  N.  S. 
693,  30  Times  L.  R.  586,  58  Sol.  Jo.  633, 
7  B.  W.  C.  C.  398.  It  is  not  necessary  to 
discuss  the  English  cases  relied  on  by  the 
insurer.  Many  of  them  are  reviewed  in  Mc- 
Nicol's Case,  ubi  supra.  While  it  is  possi- 
ble that  some  of  the  English  cases  are  not 
reconcilable  with  each  other,  it  seems  to 
us  that  none  are  opposed  to  the  result 
which  we  have  reached. 
Decree  affirmed. 


MASSACHUSETTS    SUPREME    JUDI- 
CIAL  COURT. 

RE  ANNIE  McNICOL  et  al. 

RE  EMPLOYERS'  LIABILITY  ASSUR- 
ANCE CORPORATION,  LIMITED,  et 
al.,  Appts. 

(215  Mass.  497,  102  N.  E.  697.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  assault  by  fellow 
servant. 

1.  Injury    to    an    employee    while    he    is 
performing  the  duties  assigned  to  him,  by 
assault  by  a  fellow  servant  who  is  permit- 
ted to  continue  his  service  while  intoxicat- 
ed, in  which  condition  he  is,  to  the  knowl- 
edge   of    the    employer,    quarrelsome    and 
dangerous,  arises  "out  of  and  in  the  course 
of"  the  employment,  within  the  meaning  of 
a  workmen's  compensation  act. 

For  other  cases,  see   Master  and  Servant, 

II.  a,  1,  in  Dig.  1-52  N.  S. 
Same    —    widow    and    child    — right    to 

share   in   recovery. 

2.  In  the  absence  of  evidence  to  show  the 
dependency   of   a   minor   child,   it   will   not 
share  with  its  mother  in  the  fund  recovered 
under    a    workmen's   compensation    act    for 
the  death  of  the  husband  and  father,  which 
provides  that  a  wife  shall   be  conclusively 
presumed  to   be  wholly   dependent   upon   a 
deceased  husband,  and  that  a  like  presump- 
tion  exists   in   favor  of  a  child   under  the 
age  of  eighteen  years,  like  "there  being  no 
surviving  dependent  parent." 


Note.  —  As  to  the  application  and  effect 
of  the  workmen's  compensation  acts  general- 
ly, see  annotation,  ante,  23. 

As  to  the  recovery  under  the  workmen's 
compensation  acts,  of  compensation  for  in- 
juries  from  assaults,  see  annotation,  post 
309. 
L.R.A.1916A. 


Same  —  decree  —  form  —  finding. 

3.  The  court  must  exercise  its  own  judg- 
ment as  to  the  kind  of  decree  to  be  entered 
under  a  workmen's  compensation  act  which 
provides  that,  when  copies  of  the  decisions 
of  the  Board  and  all  papers  in  connection 
therewith  have  been  transmitted  to  the 
court,  it  shall  render  a  decree  in  accordance 
therewith. 

(September    12,   1913.) 

A  PPEAL  by  insurers  from  a  decree  of 
A.  the  Superior  Court  for  Suffolk  County 
providing  for  equal  payments  to  the  widow 
and  minor  daughter  of  deceased  from  a  fund 
recovered  in  a  proceeding  under  a  workmen's 
compensation  act  for  his  death.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Sawyer,  Hardy,  &  Stone  for 
appellant  insurer. 

Mr.  Albert  S.  Apsey,  for  dependents: 

The  injuries  and  death  of  this  employee 
can  be  classed  as  "arising  out  of  and  in 
the  course  of  his  employment." 

Clover,  C.  &  Co.  v.  Hughes  [1910]  A.  C. 
242,  26  Times  L.  JR.  359,  79  L.  J.  K.  B.  N.  S. 
470,  102  L.  T.  N.  S.  340,  54  Sol.  Jo.  375, 
3  B.  W.  C.  C.  275,  47  Scot.  L.  R.  885; 
Craske  v.  Wigan  [1909]  2  K.  B.  635,  78 
L.  J.  K.  B.  N.  S.  994,  101  L.  T.  N.  S.  6, 
25  Times  L.  R.  632,  53  Sol.  Jo.  560;  An- 
drew v.  Failsworth  Industrial  Soc.  [1904] 
2  K.  B.  32,  73  L.  J.  K.  B.  N.  S.  511,  68 
J.  P.  409,  52  Week.  Rep.  451,  90  L.  T.  N.  S. 
611,  20  Times  L.  R.  429 ;  Rowland  v.  Wright 
[1909]  1  K.  B.  963,  77  L.  J.  K.  B.  N.  S. 
1071,  99  L.  T.  N.  S.  758,  24  Times  L.  R. 
852;  Challis  v.  London  &  S.  W.  R.  Co. 
[1905]  2  K.  B.  154,  74  L.  J.  K.  B.  N.  S. 
569,  53  Week.  Rep.  613,  93  L.  T.  N.  S. 
330,  21  Times  L.  R.  486;  Nisbet  v.  Rayne 


RE  McNICOL. 


307 


&  Burn,  26  Times  L.  R.  632  [1910]  2  K.  B. 
689,  80  L.  J.  K.  B.  N.  S.  84,  103  L.  T.  N.  S. 
178,  54  Sol.  Jo.  719,  3  B.  W.  C.  C.  507; 
Collins  v.  Collins  [1907]  2  R.  I.  104;  Gil- 
man  v.  Eastern  R.  Co.  13  Allen.  433,  90 
Am.  Dec.  210;  McPhee  v.  Scully,  163  Mass. 
216,  39  N.  E.  1007;  Christian  v.  Columbus 
&  R.  R.  Co.  79  Ga.  460,  7  S.  E.  216. 

Kug-g,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

This  is  a  proceeding  under  Stat.  1911, 
chap.  751,  as  amended  by  Stat.  1912,  chap. 
571,  known  as  the  workmen's  compensation 
act,  by  dependent  relatives  for  compensa- 
tion for  the  death  of  Stuart  McNicol. 

1.  The  first  question  is  whether  the  de- 
ceased received  an  "injury  arising  out  of 
and  in  the  course  of  his  employment,"  with- 
in the  meaning  of  those  words  in  part  2,  §  1, 
of  the  act.  In  order  that  compensation  may 
be  due  the  injury  must  both  arise  out  of 
and  also  be  received  in  the  course  of  the 
employment.  Neither  alone  is  enough. 

It  is  not  easy  nor  necessary  to  the  de- 
termination of  the  case  at  bar  to  give  a 
comprehensive  definition  of  these  words 
which  shall  accurately  include  all  cases  em- 
braced within  the  act,  and  with  precision 
exclude  those  outside  its  terms.  It  is  suf- 
ficient to  say  that  an  injury  is  received  "in 
the  course  of"  the  employment  when  it 
come  while  the  workman  is  doing  the  duty 
which  he  is  employed  to  perform.  It  "arises 
out  of"  the  employment,  when  there  is  ap- 
parent to  the  rational  mind  upon  considera- 
tion of  all  the  circumstances,  a  causal  con- 
nection between  the  conditions  under  which 
the  work  is  required  to  be  performed  and  the 
resulting  injury.  Under  this  test,  if  the  in- 
jury can  be  seen  to  have  followed  as  a 
natural  incident  of  the  work,  and  to  have 
been  contemplated  by  a  reasonable  person 
familiar  with  the  whole  situation  as  a  result 
of  the  exposure  occasioned  by  the  nature  of 
the  employment,  then  i^  arises  "out  of"  the 
employment.  But  it  excludes  an  injury 
which  cannot  fairly  be  traced  to  the  employ- 
ment as  a  contributing  proximate  cause,  and 
which  comes  from  a  hazard  to  which  the 
workmen  would  have  been  equally  exposed 
apart  from  the  employment.  The  causative 
danger  must  be  peculiar  to  the  work,  and  not 
common  to  the  neighborhood.  It  must  be 
incidental  to  the  character  of  the  business, 
and  not  independent  of  the  relation  of  mas- 
ter and  servant.  It  need  not  have  been  fore- 
seen or  expected,  but  after  the  event  it 
must  appear  to  have  had  its  origin  in  a  risk 
connected  with  the  employment,  and  to 
have  flowed  from  that  source  as  a  rational 
consequence. 

The  exact  words  to  be  interpreted  are 
found  in  the  English  workmen's  compensa- 
L.R.A.1916A. 


tion  act,  and  doubtless  came  thence  into  our 
act.  Therefore  decisions  of  English  courts 
before  the  adoption  of  our  act  are  entitled 
to  weight.  Ryalls  v.  Mechanics'  Mills,  150 
Mass.  190,  5  L.R.A.  667,  22  N.  E.  766,  15 
Am.  Neg.  Cas.  552.  It  there  had  been  held 
that  injuries  received  from  alighting  on  a 
high  and  unusually  exposed  scaffold  (An- 
drew v.  Failsworth  Industrial  Soc.  [1904] 
2  K.  B.  32,  73  L.  J.  K.  B.  N.  S.  511,  68 
J.  P.  409,  42  Week.  Rep.  451,  90  L.  T.  N.  S. 
611,  20  Times  L.  R.  429),  from  the  bite 
of  a  cat  habitually  kept  in  the  place  of  em- 
ployment (Rowland  v.  Wright  [1909]  1 
K.  B.  963,  77  L.  J.  K.  B.  N.  S.  1071,  99 
L.  T.  N.  S.  758,  24  Times  L.  R.  852),  from 
a  stone  thrown  by  a  boy  from  the  top  of  a 
bridge  at  a  locomotive  passing  underneath 
(Challis  v.  London  &  S.  W.  R.  Co.  [1905} 
2  K.  B.  154,  74  L.  J.  K.  B.  N.  S.  569,  53 
Week.  Rep.  613,  93  L.  T.  N.  S.  330, 
21  Times  L.  R.  486 ) ,  and  from  an  at- 
tack upon  a  cashier  traveling  with  a 
large  sum  of  money  (Nisbet  v.  Rayne 
&  Burn  [1910]  2  K.  B.  689,  80  L.  J.  K.  B. 
N.  S.  84,  103  L.  T.  N.  S.  178,  26  Times  L.  R. 
632,  54  Sol.  Jo.  719,  3  B.  W.  C.  C.  507), 
all  arose  in  the  course  and  out  of  the  em- 
ployment, while  the  contrary  had  been  held 
as  to  injuries  resulting  from  a  piece  of 
iron  thrown  in  anger  by  a  boy  in  the  same 
service  (Armitage  v.  Lancashire  &  Y.  R, 
Co.  [1902]  2  K.  B.  178,  71  L.  J.  K.  B.  N.  S. 
778,  66  J.  P.  613,  86  L.  T.  N.  S.  883,  18 
Times  L.  R.  648),  from  fright  at  the  incur- 
sion of  an  insect  into  the  room  (Craske  v, 
Wigan  [1909]  2  K.  B.  635,  78  L.  J.  K.  B. 
N.  S.  994,  101  L.  T.  N.  S.  6,  25  Times  L.  R. 
632,  53  Sol.  Jo.  560),  and  from  a  felonious 
assault  of  the  employer  (Blake  v.  Head,  106 
L.  T.  N.  S.  822,  28  Times  L.  R.  321,  5  B.  W. 
C.  C.  303). 

The  definition  formulated  above,  when 
referred  to  the  facts  of  these  cases,  reaches 
results  in  accord  with  their  conclusions.  Ap- 
plying it  to  the  facts  of  the  present  case,  it 
seems  plain  that  the  injury  of  the  deceased 
arose  "out  of  and  in  the  course  of  his  em- 
ployment." The  findings  of  the  Industrial 
Accident  Board  in  substance  are  that  Stuart 
McNicol,  while  in  the  performance  of  his  du- 
ty at  the  Hoosac  Tunnel  Docks  as  a  checker 
in  the  employ  of  a  firm  of  importers,  was  in- 
jured and  died  as  a  result  of  "blows  or 
kicks  administered  to  him  by  ... 
[Timothy]  McCarthy,"  who  was  in  "an  in- 
toxicated frenzy  and  passion."  McCarthy 
was  a  fellow  workman  who  "was  in  the 
habit  of  drinking  to  intoxication,  and  when 
intoxicated  was  quarrelsome  and  danger- 
ous, and  unsafe  to  be  permitted  to  work 
with  his  fellow  employees,  all  of  which  was 
known  to  the  superintendent  Matthews," 
who  knowingly  permitted  him  in  such  con- 


308 


WORKMEN'S  COMPENSATION . 


dition  to  continue  at  work  during  the  day 
of  the  fatality,  which  occurred  in  the  af- 
ternoon. The  injury  came  while  the  de- 
c-eased was  doing  the  work  for  which  he 
was  hired.  It  was  due  to  the  act  of  an  ob- 
viously intoxicated  fellow  workman,  whose 
quarrelsome  disposition  and  inebriate  con- 
dition were  all  well  known  to  the  foreman 
of  the  employer.  A  natural  result  of  the 
employment  of  a  peaceable  workman  in  com- 
pany with  a  choleric  drunkard  might  have 
been  found  to  be  an  attack  by  the  latter 
upon  his  companion.  The  case  at  bar  is 
quite  distinguishable  from  a  stabbing  by 
a  drunken  stranger,  a  felonious  attack  by  a 
sober  fellow  workman,  or  even  rough  sport 
or  horseplay  by  companions  who  might  have 
been  expected  to  be  at  work.  Although  it 
may  be  that  upon  the  facts  here  disclosed  a 
liability  on  the  part  of  the  employer  for 
negligence  at  common  law  or  under  the  em- 
ployers' liability  act  might  have  arisen,  this 
decision  does  not  rest  upon  that  ground,  but 
upon  the  causal  .connection  between  the  in- 
jury of  the  deceased  and  the  conditions  un- 
der which  the  defendant  required  him  to 
work.  A  fall  from  a  quay  by  a  sailor  while 
returning  from  shore  leave  (Kitchenham  v. 
The  Johannesburg  [1911]  1  K.  B.  523,  80 
L.  J.  K.  B.  N.  S.  313,  103  L.  T.  N.  S.  778, 
27  Times  L.  R.  124,  55  Sol.  Jo.  124,  4 

B.  W.  C.  C.  91,  s.  c.   [1911]   A.  C.  417,  80 
L.  J.  K.  B.  N.  S.  1102,  105  L.  T.  N.  S.  118, 

27  Times  L.  R.  504,  55  Sol.  Jo.  599,  4  B. 
W.  C.  C.  311),  a  sting  from  a  wasp   (Amys 
v.  Barton  [1912]  1  K.  B.  40,  81  L.  J.  K.  B. 
N.  S.  65,  105  L.  T.  N.  S.  619,  28  Times  L.  R. 
29,   5   B.   W.  C.   C.   117),  and  a  frost  bite 
(Warner  v.  Couchman   [1912]   A.  C.  35,  81 
L.  J.  K.  B.  N.  S.  45,  105  L.  T.  N.  S.  676, 

28  Times  L.  R.  58,  56  Sol.  Jo.  70,  5  B.  W. 

C.  C.    177,   49    Scot.   L.   R.   681),   all   have 
been  held  to  be  injuries  not  "arising  out  of" 
the  employment.     But  we   find  nothing   in 
any   of  them   in   conflict   with   our   present 
conclusion.     Nor  is  there  anything  at  var- 
iance with   it  in   Mitchinson  v.   Day   Bros. 
[1913]    1  K.  B.  603,  82  L.  J.  K.  B.  N.  S. 
421,   108  L.  T.  N.   S.   193,  29  Times  L.   R. 
267,   57    Sol.   Jo.   300,   6   B.   W.   C.   C.   190, 
where   it   was   held   that   injuries   resulting 
from  an  assault  by  a  drunken  stranger  upon 
an   employee   engaged   at   his   work   on   the 
highway  did  not  arise  out  of  the  employ- 
ment.    That  was  a  quite  different  situation 
from  the  one  now  before  us. 

2.  It  is  necessary  to  determine  the  per- 
sons to  whom  the  payments  provided  for 
in  the  act  shall  be  made.  It  may  be  as- 
sumed from  this  record  that  no  personal 
representative  of  the  deceased  has  been  ap- 
pointed. He  left  a  widow  and  a  minor 
daughter  presumably  under  the  age  of 
eighteen  years.  Part  2,  §  7,  provides  that  a 
L.R.A.1016A. 


wife  conclusively  shall  be  presumed  to  be 
wholly  dependent  upon  a  deceased  husband, 
while  a  like  presumption  exists  in  favor  of 
"a  child  or  children  under  the  age  of  eight- 
een years  .  .  .  upon  the  parent  with 
whom  he  is  or  they  are  living  at  the  time  of 
the  death  of  such  parent,  there  being  no  sur- 
viving dependent  parent."  The  natural 
meaning  of  this  sentence  is  that  the  con- 
clusive presumption  of  dependency  of  chil- 
dren is  conditioned  upon  the  nonexistence  of 
a  surviving  dependent  parent.  There  are 
no  other  words  in  this  or  other  sections  of 
the  act  which  control  its  plain  significance. 
The  use  of  the  plural  word  "dependents"  -in 
several  places  in  §§  6,  and  8  in  part  2  finds 
ample  justification  in  the  many  conceivable 
instances  where  several  persons  may  be  en- 
titled to  share  in  the  payments  when  there 
is  no  surviving  husband  or  wife. 

The  provisions  of  Stat.  6  Edw.  VII.  chap. 
58,  §  13  as  to  the  dependents  entitled  to  our 
payments,  are  wholly  different  from  those 
of  our  own  act,  and  decisions  of  the  Eng- 
lish courts  have  no  bearing  on  the  case  at 
bar. 

3.  The  act  does  not  contemplate  the  al- 
lowance   of    bills    of    exceptions,    and    that 
presented  in  the  case  at  bar  must  be  dis- 
missed.    The  case  is  properly  here  on  ap- 
peal.    Gould's  Case,  215  Mass.  480,  102  N. 
E.  693,  Ann.  Cas.  1914D,  372,  4  N.  C.  C.  A. 
60. 

4.  There   is  error   in  the  decree.     In  the 
decree  entered 'in  the  superior  court  the  rul- 
ing of  the  board  of  arbitration  was  followed, 
providing  that  the  payments  should  be  divid- 
ed equally  between  the  widow  and  the  de- 
pendent minor  daughter,  rather  than  that  of 
the    Industrial    Accident    Board,    that    the 
widow  alone  was  entitled  to  the  payments. 
This  was  not  in  accordance  with  the  act,  as 
has  been  pointed  out.    Apparently  the  judge 
of  the  superior  court  exercised  his  own  judg- 
ment as  to  the  kind  of  decree  which  the  law 
required  upon  the  facts  found.     This  is  cor- 
rect.   Part  3,  §  1 1,  of  the  act,  as  amended  by 
Stat.   1912,  chap.   571,   §   14,  provides  that 
when  copies  of  the  "decision  of  the  Board 
.     .     .     and  all  papers  in  connection  there- 
with"  have  been   transmitted   to  the   supe- 
rior court,  "said  court  shall  render  a  decree 
in  accordance  therewith."     This  means  such 
a  decree  as  the  law  requires  upon  the  facts 
found  by  the  Board.     It  does  not  make  the 
action   of   the   superior   court   a   mere   per- 
functory   registration    of    approval    of    the 
conclusions  of  law  reached  by  the  Industrial 
Accident   Board.      The    section    in   question 
doubtless  was  enacted  because  of  the  intima- 
tion in  the  Opinion  of  Justices,  209  Mass. 
607.  612,  96  N.  E.  308,  1  N.  C.  C.  A.  557, 
to  the  effect  that  the  decisions  of  the  Board 
must   be   enforced   by  appropriate   proceed- 


RE  McNICOL. 


309 


ings  in  court.  The  obligation  placed  upon 
the  superior  court  by  the  requirement  to 
enter  a  decree  in  accordance  with  the  deci- 
sion is  to  exercise  its  judicial  function  by 
entering  such  decree  as  will  enforce  the 


legal  rights  of  the  parties  as  disclosed  by 
the  facts  appearing  on  the  record. 

It  follows  that  the  decree  must  be  re- 
versed and  a  new  decree  entered  as  required 
by  this  opinion. 


Annotation — Recovery  of  compensation  where   workman   suffers   injury 

from  assault. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

The  fact  that  the  injury  was  the  re- 
sult of  a  wilful  or  even  criminal  assault 
by  another  does  not  exclude  the  possi- 
bility that  the  injury  was  caused  by  ac- 
cident. Western  Indemnity  Co.  v.  Pills- 
bury  (1915)  -  -  Cal.  — ,  151  Pac.  398 
(section  foreman  assaulted  by  member  of 
gang  who  had  been  discharged) ;  RE  Mc- 
NICOL  (workman  assaulted  by  intoxicated 
fellow  workman) ;  RE  REITHEL  (employee 
shot  while  attempting  to  remove  intruder 
from  factory  in  accordance  with  instruc- 
tions). 

The  same  view  has  been  taken  by  the 
English  court. 

Thus,  an  assistant  schoolmaster  in  an 
industrial  school,  who  died  from  a  frac- 
ture of  the  skull  and  other  injuries,  the 
result  of  an  assault  committed  upon  him 
by  several  boys  in  the  school,  in  pursu- 
ance of  a  prearranged  plan,  suffers  in- 
jury by  accident.  Kelly  v.  Trim  Joint 
Dist.  School  [1913]  W.  C.  &  Ins.  Rep. 
401,  47  Ir.  Law  Times,  151,  6  B.  W.  C. 
C.  921,  affirmed  in  [1914]  A.  C.  (Eng.) 
667,  111  L.  T.  N.  S.  306,  30  Times  L.  R. 
452,  [1914]  W.  N.  177,  7  B.  W.  C.  C.  274, 
83  L.  J.  P.  C.  N.  S.  220,  58  Sol.  Jo.  493, 
48  Ir.  Law  Times,  141,  [1914]  W.  C.  & 
Ins.  Rep.  359. 

And  the  murder  of  a  cashier  for  the 
sake  of  robbery  is  an  accident  within  the 
meaning  of  the  statute.  Nisbet  v.  Rayne 
[1910]  2  K.  B.  (Eng.)  689,  80  L.  J.  K.  B. 
N.  S.  84, 103  L.  T.  N.  S.  178,  26  Times  L. 
R,  632,  54  Sol.  Jo.  719,  3  B.  W.  C.  C.  507. 

A  game  keeper  who  is  beaten  by  poach- 
ers suffers  an  injury  by  accident  within 
the  meaning  of  the  act.  Anderson  v.  Bal- 
four  [1910]  2  I.  R.  497,  44  Ir.  Law  Times, 
168,  3  B.  W.  C.  C.  588. 

The  Scotch  court,  however,  has  held 
that  an  employee  taking  the  place  of 
strikers,  who  was  assaulted  by  the  latter, 
is  not  injured  by  accident,  since  the  word 
"accident,"  taken  in  its  popular  sense, 
excludes  a  case  where  the  injury  is  wil- 
fully inflicted  by  another  person.  Mur- 
ray v.  Denholm  [1911]  S.  C.  1088,  48 
Scot.  L.  R.  896,  5  B.  W.  C.  C.  496.  In 
discussing  this  decision,  however,  Vis- 
count Haldane  in  Trim  Joint  Dist.  School 
L.R.A.1916A. 


v.  Kelly  [1914]  A.  C.  (Eng.)  667,  111 
L.  T.  N.  S.  306,  30  Times  L.  R.  452, 
[1914]  W.  N.  177,  7  B.  W.  C.  C.  274,  83 
L.  J.  P.  C.  N.  S.  220,  58  Sol.  Jo.  493,  48 
Ir.  Law  Times,  141  [1914]  W.  C.  &  Ins. 
Rep.  359,  said  that  the  Scotch  court  must 
have  misinterpreted  former  decisions  of 
the  House  of  Lords,  and  that  it  is  none 
the  less  an  accident  in  the.  ordinary  and 
popular  sense  in  which  the  word  is  used 
because  it  is  caused  by  personal  violence. 

Although  an  assault  may  be  an  acci- 
dent within  the  meaning  of  a  statute, 
nevertheless,  no  compensation  is  recover- 
able unless  it  arose  out  of  and  in  the 
course  of  the  employment. 

Where  an  assault  is  such  as  is  likely  to 
happen  because  of  the  very  nature  of  the 
work  being  performed,  it  has  been  held 
to  arise  out  of  the  employment.  Trim 
Joint  Dist.  School  v.  Kelly  [1914]  A.  C. 
(Eng.)  667,  111  L.  T.  N.  S.  306,  30  Times- 
L.  R.  452  [1914]  W.  N.  177,  83  L.  J.  P. 
C.  N.  S.  220,  58  Sol.  Jo.  493,  48  Ir.  Law 
Times,  141  [1914]  W.  C.  &  Ins.  Rep.  359,. 
7  B.  W.  C.  C.  274  (assistant  schoolmaster 
in  an  industrial  school,  assaulted  by  sev- 
eral boys  of  the  school,  in  accordance 
with  prearranged  plan) ;  Nisbet  v.  Rayne 
[1910]  2  K.  B.  (Eng.)  689,  80  L.  J.  K. 
B.  N.  S.  84, 103  L.  T.  N.  S.  178,  26  Times 
L.  R.  632,  54  Sol.  Jo.  719,  3  B.  W.  C.  C. 
507,  3  N.  C.  C.  A.  368  (cashier,  traveling 
with  a  large  sum  of  money,  assaulted  and 
robbed) ;  Weekes  v.  Stead  [1914]  W.  N. 
(Eng.)  263,  30  Times  L.  R.  586,  58  SoL 
Jo.  633,  137  L.  T.  Jo.  180  [1914]  W.  C. 
&  Ins.  Rep.  434,  83  L.  J.  K.  B.  N.  S. 
1542,  111  L.  T.  N.  S.  693,  7  B.  W.  C.  C. 
398,  6  N.  C.  C.  A.  1010  (foreman  of  com- 
pany employed  in  moving  furniture  as- 
saulted by  man  to  whom  he  had  refused' 
work). 

A  section  foreman  in  charge  of  a  gang 
of  fifteen  or  twenty  section  men,  mostly 
Greeks,  may  be  found  to  be  acting  in  the 
scope  of  his  employment  in  attempting  to 
take  a  shovel  away  from  one  of  the  gang, 
who,  after  he  had  been  properly  instruct- 
ed, continued  to  do  the  work  in  the  wrong 
manner,  and  who  continued  to  hold  the 
shovel  after  he  had  been  told  to  drop  it 
and  get  his  time,  and  who,  upon  the  fore- 
man's attempting  to  take  the  shovel,  com- 
mitted an  assault  upon  him.  Western 


310 


WORKMEN'S  COMPENSATION. 


Indemnity  Co.  v.  Pillsbury  (1915)  —  Cal. 
— ,  151  Pac.  398. 

An  iron  moulder's  helper,  who,  while 
working  in  a  stooping  position  in  close 
proximity  to  boxes  of  molten  metal,  was 
struck  by  an  intoxicated  stranger  and 
fell  and  was  burned  by  the  metal,  suffer- 
ed injury  by  accident  arising  out  of  and 
in  the  course  of  his  employment.  Shaw 
v.  Macfarlane  (1914)  52  Scot.  L.  R.  236, 
8  B.  W.  C.  C.  382.  Lord  Dundas,  in  dis- 
cussing the  earlier  Scotch  case  of  Burley 
v.  Baird  [1908]  S.  C.  545,  45  Scot.  L.  R. 
416, 1  B.  W.  C.  C.  7,  stated  that  the  Lord 
Justice  Clerk's  opinion,  so  far  as  based 
upon  the  ground  that  an  injury  caused 
by  the  wilful  and  unjust  act  of  a  wrong- 
doer cannot  be,  in  any  sense,  an  accident, 
"cannot,  looking  to  the  subsequent  march 
of  judicial  decisions,  now  be  supported 
as  sound  law." 

In  one  case  it  was  held  that  although 
the  injury  was  caused  by  a  stone  wilfully 
thrown  by  a  boy,  it  might  be  said  to  be 
an  "accident"  from  the  standpoint  of  the 
one  who  suffered  the  injury.  Challis  v. 
London  &  S.  W.  R.  Co.  [1905]  2  K.  B. 
(Eng.)  154,  74  L.  J.  K.  B.  N.  S.  569,  53 
Week.  Rep.  613,  93  L.  T.  N.  S.  330,  21 
Times  L.  R.  486,  7  W.  C.  C.  23. 

Generally,  however,  assaults  are  not  to 
be  considered  as  incident  to  the  ordinary 
work  performed  by  a  workman. 

Thus,  no  compensation  was  allowed 
where  the  workman  was  employed  as  a 
cook  in  a  hotel,  and  a  drunken  customer 
came  out  of  the  barroom  into  the  kitchen, 
and  made  a  rush  at  the  cook,  who  was  ' 


injured  in  trying  to  avoid  him.  Murphy 
v.  Berwick  (1909)  43  IT.  Law  Times,  126. 

So,  an  employee  who  goes  to  the  rescue 
of  his  employer,  who  is  being  attacked 
by  a  gang  of  rowdies,  and  is  stabbed  to 
death,  is  not  injured  by  an  accident  aris- 
ing out  of  and  in  the  course  of  his  em- 
ployment. Collins  v.  Collins  (1907)  2  I. 
R.  (Ir.)  104. 

The  risk  of  being  assaulted  by  a  drunk- 
en man  is  not  in  any  way  especially  con- 
nected with  or  incident  to  employment  as 
a  carter.  Mitchinson  v.  Day  Bros.  [1913] 
1  K.  B.  (Eng.)  603,  82  L.  J.  K.  B.  N.  S. 
421,  108  L.  T.  N.  S.  193,  29  Times  L.  R. 
267,  57  Sol.  Jo.  300,  6  B.  W.  C.  C.  190. 

In  two  cases  it  has  been  held  that  no 
compensation  is  recoverable  where  one 
workman  is  injured  by  a  stone  thrown 
in  anger  by  another  workman.  Armitage 
v.  Lancashire  &  Y.  R.  Co.  [1902]  2  K. 
B.  (Eng.)  178,  71  L.  J.  K.  B.  N.  S.  778, 
66  J.  P.  613,  86  L.  T.  N.  S.  883, 18  Times 
L.  R.  648;  Claytum  v.  Hardwick  Colliery 
Co.  (1914)  7  B.  W.  C.  C.  (Eng.)  643. 

An  injury  received  by  a  workman  while 
he  himself  was  deliberately  assaulting  a 
fellow  workman  is  not  caused  by  accident 
arising  out  of  and  in  the  course  of  the 
employment.  Shaw  v.  Wigan  Coal  &  I. 
Co.  (1909)  3  B.  W.  C.  C.  (Eng.)  81. 

And  an  injury  caused  by  an  intention- 
ally felonious  assault  by  an  employer 
upon  the  workman  does  not  arise  out  of 
the  employment.  Blake  v.  Head  [1912] 
W.  C.  Rep.  (Eng.)  198,  106  L.  T.  N.  S. 
822,  28  Times  L.  R.  321,  5  B.  W.  C.  C. 
303.  W.  M.  G. 


MICHIGAN   SUPREME   COURT. 

JANE  E.  HOPKINS 

v. 

MICHIGAN    SUGAR    COMPANY    et    al., 
Plffs.   in   Certiorari. 

(—  Mich.  — ,  150  N.  W.   325.) 

Master   and    servant   —   injury    arising 
out  of  employment  —  fall  on  street. 

An  injury  due  to  a  fall  on  a  slippery 
street  by  one  employed  to  supervise  his 
employer's  plants,  which  required  him  to 
travel  about  from  place  to  place,  when  he 
is  going  from  the  sidewalk  onto  the  street 
to  board  a  street  car  to  return  to  his  home 
after  a  tour  of  inspection,  does  not  arise 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As   to   recovery   of   compensation   for   in- 
juries   received    while    on    the    street,    se<? 
annotation,  post,  314. 
L.R.A.1916A. 


out  of  his  employment  within  the  meaning 
of  those  words  in  a  workmen's  compensa- 
tion act. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  S. 

(January  4,  1915.) 

pERTIORARI  to  the  Industrial  Accident 
\J  Board  to  review  an  order  affirming  an 
award  of  the  Arbitration  Committee  to 
claimant  as  compensation  under  the  work- 
men's compensation  act  for  the  death  of 
her  husband.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  M.  J  Cavanaugh,  with  Mr.  Frank 
J.  Riggs,  for  plaintiffs  in  certiorari: 

Conceding,  for  the  sake  of  argument, 
that  the  facts  found  by  the  board  are  sup- 
ported by  evidence  and  accepted  as  true, 
they  are  insufficient,  as  matter  of  law,  to 
show  that  the  injury  of  deceased  arose  in 
the  course  of  his  employment. 


HOPKINS  v.  MICHIGAN  SUGAR  CO. 


311 


Jackson  v.  General  Steam  Fishing  Co.  2 
B.  W.  C.  C.  51,  46  Scot.  L.  R.  55,  [1909] 

5.  C.  63;  Russell  v.  Oregon  Short  Line  R. 
Co.  83  C.  C.  A.  618,  155  Fed.  22;   Wink  v. 
Weiler,  41  111.  App.  336;  Baltimore  &  O.  R. 
Co.  v.  State,  36  Md.  542;   McNicol's  Case, 
215  Mass.  497,  ante,  306,   102  N.   E.   697, 
4    N.    C.    C.    A.    522;    Holness    v.    Mackav 
[1899]    2    Q.    B.    319;    Edwards    v.    Wing- 
ham  Agri.  Implement  Co.   [1913]    3  K.  B. 
596,   82   L.  J.  K.   B.  N.   S.  998,   109  L.  T. 
N.  S.  50,  6  B.  W.  C.  C.  511. 

The  facts  found  by  the  board,  if  accepted 
as  true,  are  insufficient,  as  matter  of  law, 
to  establish  an  injury  arising  out  of  the 
employment  of  deceased. 

Fitzgerald  v.  W.  G.  Clarke  &  Son,  99  L. 
T.  N.  S.  101,  1  B.  W.  C.  C.  197,  [1908]  2  K. 

B.  796,  77  L.  J.  K.  B.  N.  S.  1018 ;  McNicol's 
Case,  215  Mass.  497,  ante,  306, 102  N.  E.  697, 
4  N.  C.  C.  A.  522;  Kelly  v.  Kerry  County 
Council,  42  Ir.  Law  Times,  23,  1  B.  W.  C. 

C.  194;    Craske  v.  Wigan   [1909]    2  K.  B. 
635,  78  L.  J.  K.  B.  N.  S.  994,  101  L.  T.  N.  S. 

6,  25   Times   L.   R.   632,   53   Sol.   Jo.   560; 
Warner  v.  Couchman   [1911]    1  K.  B.  351, 
80  L.  J.  K.  B.  N.  S.  526,  103  L.  T.  N.  S. 
693,  27  Times  L.  R.   121,  55  Sol.  Jo.  107. 
4  B.  W.  C.  C.  32,  1  N.  C.  C.  A.  51;  House 
of  Lords  [1912]  A.  C.  35,  [1912]  W.  C.  & 
Ins.  Rep.  28,  81  L.  J.  K.  B.  N.  S.  45,  105 
L.  T.  N.  S.  676,  28  Times  L.  R.  58,  56  Sol. 
Jo.  70,  5  B.  W.  C.  C.  177,  49  Scot.  L.  R. 
681;   Karemaker  v.  The  Corsican,  4  B.  W. 
C.  C.  295;  Amys  v.  Barton  [1912]   1  K.  B. 
40,  81  L.  J.  K.  B.  N.  S.  65,  105  L.  T.  N.  S. 
619,  28  Times  L.  R.  29,  5  B.  W.  C.  C.  117; 
Mitchinson  v.  Day  Bros.  [1913]  1  K.  B.  603, 
82  L.  J.  K.  B.  N.  S.  421,  108  L.  T.  N.  S. 
193,  29  Times  L.  R.  267,  57  Sol.  Jo.  300, 
6   B.   W.   C.   C.   190;    Worden  v.   Common- 
wealth Power  Co.  20  Detroit  Leg.  News  No. 
39  (Dec.  27,  1913). 

Messrs.  Brooks  &  Cook,  for  defendant  in 
certiorari : 

The  injury  arose  in  the  course  of  the 
employment. 

Adams  v.  Iron  Cliffs  Co.  78  Mich.  271, 
18  Am.  St.  Rep.  441,  44  N.  W.  270;  Broder- 
ick  v.  Detroit  Union  R.  Station  &  Depot  Co. 
56  Mich.  261,  56  Am.  Rep.  382,  22  N.  W. 
802;  Pigeon's  Case,  216  Mass.  51,  102  N. 
E.  932,  Ann.  Cas.  1915A,  737,  4  N.  C.  C.  A. 
518;  Chitty  v.  Nelson,  126  L.  T.  Jo.  172, 
3  N.  C.  C.  A.  274,  2  B.  W.  C.  C.  496 ;  Inter- 
national &  G.  N.  R.  Co.  v.  Ryan,  82  Tex.  565, 
18  S.  W.  219;  Alderidge  v.  Merry  [1913] 
W.  C.  &  Ins.  Rep.  97,  47  Ir.  Law  Times, 
5,  [1913]  2  I.  R.  308,  6  B.  W.  C.  C.  450; 
St.  Louis  A.  &  T.  R.  Co.  v.  Welch,  72  Tex. 
298,  2  L.R.A.  839,  10  S.  W.  529;  Grant  v. 
Glasgow  &  S.  W.  R.  Co.  [1908]  S.  C.  187 ; 
Mitchell  v.  Glamorgan  Coal  Co.  23  Times 
L.  R.  588;  Wright  v.  Kerrigan  [1911]  2  I. 
L.R.A.1916A. 


R.  301,  45  Ir.  Law  Times,  82,  4  B.  W.  C.  C. 
432;  Fleet  v.  Johnson  &  Sons,  29  Times  L. 
R.  207,  57  Sol.  Jo.  226,  6  B.  W.  C.  C.  60; 
Sheehy  v.  Great  Southern  &  W.  R.  Co.  47 
Ir.  Law  Times  161,  6  B.  W.  C.  C.  927;  Lee 
v.  Stag  Line  Co.  107  L.  T.  N.  S.  509,  156 
Sol.  Jo.  720,  5  B.  W.  C.  C.  660;  Stapleton 
v.  Dinnington  Maine  Coal  Co.  107  L.  T.  N. 
S.  247,  5  B.  W.  C.  C.  602. 

The  accident  arose  out  of  the  employment 
of  the  deceased. 

Fitzgerald  v.  W.  G.  Clarke  &  Son,  99  L. 
T.  N.  S.  101,  1  B.  W.  C.  C.  197,  [1908]  2 
K.  B.  796,  77  L.  J.  K.  B.  N.  S.  1018; 
M'Neice  v.  Singer  Sewing  Mach.  Co.  4  B. 
W.  C.  C.  351,  48  Scot.  L.  R.  15,  [1911]  S.  C. 
13;  McNicol's  Case,  215  Mass.  497,  ante, 
306,  102  N.  E.  697,  4  N.  C.  C.  A.  522;  Pierce 
v.  Provident  Clothing  &  Supply  Co.  104  L. 
T.  N.  S.  473,  4  B.  W.  C.  C.  242,  [1911]  1 
K.  B.  997,  80  L.  J.  K.  B.  N.  S.  831,  27 
Times  L.  R.  299,  55  Sol.  Jo.  363;  Dickinson 
v.  Barmack,  124  L.  T.  Jo.  403;  Refuge  As- 
sur.  Co.  v.  Millar,  49  Scot.  L.  R.  67;  Nel- 
son v.  Belfast,  42  Ir.  Law  Times,  223,  1  B. 
W.  C.  C.  158 ;  Andrew  v.  Falisworth  Indus- 
trial Soc.  [1904]  2  K.  B.  32,  73  L.  J.  K.  B. 
N.  S.  511,  68  J.  P.  409,  52  Week.  Rep.  451, 
90  L.  T.  N.  S.  611,  20  Times  L.  R.  429; 
Nisbet  v.  Rayne  &  Burn  [1910]  2  K.  B.  689, 
3  N.  C.  C.  A.  368,  80  L.  J.  K.  B.  N.  S.  84, 
103  L.  T.  N.  S.  178,  26  Times  L.  R.  632, 
54  Sol.  Jo.  719,  3  B.  W.  C.  C.  507;  Mitch- 
ell v.  Glamorgan  Coal  Co.  23  Times  L.  R. 
588;  Wright  v.  Kerrigan  [1911]  2  I.  R. 
301,  45  Ir.  Law  Times,  82,  4  B.  W.  C.  C. 
432;  Fleet  v.  Johnson  &  Sons,  209  Times 
L.  R.  207,  57  Sol.  Jo.  226,  6  B.  W.  C.  C.  60 : 
Sheehy  v.  Great  Southern  &  W.  R.  Co.  47 
Ir.  Law  Times,  161,  6  B.  W.  C.  C.  927; 
Lee  v.  Stag  Line  Co.  107  L.  T.  N.  S.  509, 
56  Sol.  Jo.  720,  5  B.  W.  C.  C.  660;  Staple- 
ton  v.  Dinnington  Maine  Coal  Co.  107  L. 
T.  N.  S.  247,  5  B.  W.  C.  C.  602. 

Mr.  Hal  H.  Smith  also  for  defendant  in 
certiorari. 

Steere,  J.,  delivered  the  opinion  of  the 
court : 

The  proceedings  in  this  case,  brought 
here  for  review  by  certiorari,  arose  under 
act  10,  Pub.  Acts  1912  (Extra  Session), 
and  involve  the  validity  of  an  award,  by 
the  State  Industrial  Accident  Board,  of 
compensation  to  claimant  for  the  death  of 
her  husband  on  February  13,  1913,  against 
his  employer,  the  Michigan  Sugar  Company, 
defendant. 

It  appears  from  the  finding  of  the  board, 
supported  by  competent  evidence,  that  de- 
ceased was  in  the  employ  of  said  company 
as  its  chief  engineer,  supervising  the  instal- 
lation of  machinery  in,  and  operation  of, 
six  of  its  plants  located  at  Saginaw,  Bay 


312 


WORKMEN'S  COMPENSATION. 


City,  Alma,  Croswell,  Caro,  and  Sebewaing. 
He  resided  at  Saginaw,  had  a  desk  at  the 
office  of  the  company  in  that  city,  and  did 
work  there  from  time  to  time,  but  had  no 
regular  office  hours,  and  was  engaged  much 
of  his  time  visiting  and  looking  after  the 
different  factories,  as  directed  or  as  cir- 
cumstances might  require.  He  received  an 
annual  salary,  with  his  traveling  expenses 
paid  when  going  on  business  of  his  em- 
ployer. He  sometimes  started  from  the  of- 
fice and  at  other  times  from  his  home  when 
making  such  trips.  On  February  4,  1913, 
he  left  Saginaw  in  the  morning  for  Sebe- 
waing, to  visit  the  company's  plant  at  that 
place.  A  train  arrived  at  Saginaw  from 
Sebewaing  at  5:40  p.  M.  About  6:40  he 
arrived  home  with  an  injury  to  his  head, 
which  was  bleeding  a  little  at  the  back,  and 
which  his  wife  cared  for.  He  detailed  to 
her,  and  subsequently  to  others,  how  it  oc- 
curred. No  one  is  shown  to  have  seen  the 
accident.  He  spent  most  of  the  following 
day  at  the  office,  and  the  day  after  attended 
a  funeral  in  Bay  City.  During  those  two 
days  he  appeared  unwell,  complained  of  a 
severe  headache,  and  in  speaking  of  it  told 
of  the  accident  to  which  he  attributed  it. 
From  that  time  he  grew  worse,  suffered  a 
partial  paralysis,  with  other  symptoms  of 
brain  pressure,  and  died  on  February  13th. 
Without  details,  the  testimony  of  physi- 
cians showed  that  his  death  was  caused 
by  a  hemorrhage  resulting  from  a  small  frac- 
ture about  one-half  inch  long  extending 
from  the  vertex  of  the  skull  toward  the 
right  ear. 

It  is  claimed  and  found  by  the  Board  that 
upon  arriving  at  the  station  in  Saginaw, 
upon  his  return  in  the  evening  from  Sebe- 
waing, deceased  found  no  street  car  in  sight 
and  started  to  walk  along  Washington 
street  in  the  direction  of  both  his  home  and 
the  company's  office;  that  after  he  had 
walked  a  number  of  blocks  he  saw  a  street 
car  coming  and  started  from  the  sidewalk, 
intending  to  take  it;  that  the  ground  there 
was  icy  and  covered  with  snow,  and  he 
slipped  and  fell,  receiving  the  injury  which 
eventually  resulted  fatally.  Material  parts 
of  this  finding  are  challenged  as  unsupport- 
ed by  any  competent  evidence;  no  witness 
being  shown  to  have  seen  the  accident. 
Much  clearly  incompetent  and  purely  hear- 
say evidence  produced  by  claimant  was  ad- 
mitted in  regard  to  it,  some  of  which 
showed  that  deceased  ran  to  catch  the  car 
and  did  not  notice  the  ice  until,  in  hurry- 
ing over  it,  he  slipped  and  fell. 

Conceding,  however,  as  contended  by 
claimant,  that  facts  and  circumstances  prop- 
erly proven,  together  with  the  report  of 
accident  made  by  the  defendant  company 
to  the  Industrial  Accident  Board,  as  re-  I 
L.R.A.1916A. 


quired  by  statute,  furnish  sufficient  eviden- 
tial support  for  the  findings,  and  accepting 
them  as  true,  we  are  yet  impelled,  under 
the  authorities,  to  the  view  that  such  find- 
ings fail  to  sustain  the  conclusion  of  law 
by  the  Board  that  such  accident  was  natur- 
ally or  peculiarly  incidental  to  and  arose 
gut  of  deceased's  employment. 

To  justify  an  award  under  this  act,  it 
must  be  shown  that  the  employee  received 
"a  personal  injury  arising  out  of  and  in  the 
course  of  his  employment."  This  provision 
is  adopted  in  identical  words  from  the  Eng- 
lish workmen's  compensation  act,  and  pre- 
sumably with  the  meaning  previously  given 
it  there. 

It  is  well  settled  that,  to  justify  an. 
award,  the  accident  must  have  arisen  "out 
of"  as  well  as  "in  the  course  of"  the  employ- 
ment, and  the  two  are  separate  questions, 
to  be  determined  by  different  tests,  for  cas- 
es often  arise  where  both  requirements  are- 
not  satisfied.  An  employee  may  suffer  an 
accident  while  engaged  at  his  work  or  in 
the  course  of  his  employment  which  in  no> 
sense  is  attributable  to  the  nature  of  or 
risks  involved  in  such  employment,  and 
therefore  cannot  be  said  to  arise  out  of  it 
An  accident  arising  out  of  an  employment 
almost  necessarily  occurs  in  the  course  of 
it,  but  the  converse  does  not  follow.  1 
Bradbury,  Workmen's  Compensation,  p.  398. 
"Out  of"  points  to  the  cause  or  source  of  the 
accident,  while  "in  the  course  of"  relates  to- 
time,  place,  and  circumstance.  Fitzgerald 
v.  W.  G.  Clarke  &  Son  [1908]  2  K.  B.  796,. 
77  L.  J.  K.  B.  N.  S.  1018,  99  L.  T.  N.  S. 
101. 

The  same  provision,  in  the  same  words, 
is  found  in  the  Massachusetts  workmen's 
compensation  act.  In  McNicol's  Case,  215- 
Mass.  497,  ante,  306,  102  N.  E.  697,  4  X.  C. 
C.  A.  522,  the  controlling  question  was 
whether  fatal  injuries  received  by  an  em- 
ployee through  blows  and  kicks  adminis- 
tered by  a  fellow  workman,  "in  an  intoxi- 
cated and  frenzied  passion,"  arose  out  of 
the  employment.  It  appearing  that  the  as- 
saulting fellow  servant,  with  whom  deceased 
was  required  to  work,  was,  when  in  liquor, 
known  to  be  quarrelsome  and  dangerous, 
and  unsafe  to  be  permitted  to  work  with 
his  fellow  employees,  the  court  held  that  "a. 
natural  result  of  the  employment  of  a  peace- 
able workman  in  company  with  a  choleric 
drunkard  might  have  been  found  to  be  an 
attack  by  the  latter  upon  his  companion;" 
but  if  the  assaulter  had  not  been  :tn  em- 
ployee, though  the  injury  would  yet  have 
been  received  in  the  course  of  the  employ- 
ment, it  could  not  have  been  said  to  have 
arisen  out  of  it.  Mitchinson  v.  Day  Bros. 
[]913]  W.  C.  &  Ins.  Rep.  324,  [1913]  1  K. 
B.  603,  82  L.  J.  K.  B.  N.  S.  421,  108  L.  T.. 


HOPKINS  v.  MICHIGAN  SUGAR  CO. 


313 


N.  S.  193,  29  Times  L.  R.  267,  57  Sol.  Jo. 
300,  6  B.  W.  C.  C.  190.  In  that  connection, 
recognizing  as  controlling  authority,  and 
differentiating,  many  cited  English  cases 
upon  the  subject,  the  court  thus  clearly  and 
comprehensively  states  the  rule:  "It  is 
sufficient  to  say  that  an  injury  is  received 
'in  the  course  of  the  employment  when  it 
comes  while  the  workman  is  doing  the  duty 
which  lie  is  employed  to  perform.  It  aris- 
es out  of  the  employment  when  there  is 
apparent  to  the  rational  mind,  upon  con- 
sideration of  all  the  circumstances,  a  causal 
connection  between  the  conditions  under 
which  the  work  is  required  to  be  performed 
and  the  resulting  injury.  Under  this  test, 
if  the  injury  can  be  seen  to  have  followed 
as  a  natural  incident  of  the  work,  and  to 
have  been  contemplated  by  a  reasonable  per- 
son familiar  with  the  whole  situation  as  a 
result  of  the  exposure  occasioned  by  the 
nature  of  the  employment,  then  it  arises  'out 
of  the  employment.  But  it  excludes  an  in- 
jury which  cannot  fairly  be  traced  to  the 
employment  as  a  contributing  proximate 
cause,  and  which  comes  from  a  hazard  to 
which  the  workman  would  have  been  equal- 
ly exposed  apart  from  the  employment.  The 
causative  danger  must  be  peculiar  to  the 
work,  and  not  common  to  the  neighborhood. 
It  must  be  incidental  to  the  character  of 
the  business,  and  not  independent  of  the 
relation  of  master  and  servant.  It  need  not 
have  been  foreseen  or  expected,  but  after 
the  event  it  must  appear  to  have  had  its 
origin  in  a  risk  connected  with  the  employ- 
ment, and  to  have  flowed  from  that  source 
as  a  rational  consequence." 

The  question  of  whether  deceased  was  in 
any  sense  within  the  ambit  of  his  employ- 
ment at  the  time  and  place  of  the  accident 
is  a  serious  one;  but,  conceding  that  the 
injury  befell  him  while  in  the  course  of  his 
employment,  can  it  be  fairly  traced  to  his 
employment  as  a  contributing,  proximate 
cause,  or  did  it  come  from  a  hazard  to 
which  he.  in  common  with  others,  would 
have  been  equally  exposed  apart  from  the 
employment?  No  direct  causal  relation  is 
claimed  in  the  particular  that  the  nature 
of  the  business  of  manufacturing  sugar  in 
itself  exposes  its  employees  to  unusual  risk 
or  danger  of  accident  of  this  nature.  All 
that  can  be  claimed  is  that  the  accident  re- 
sulted from  the  understood  extra  hazard  to 
which  those  who  travel  are  exposed ;  and, 
while  traveling  in  his  employer's  business, 
he  was  protected  against  accidents  attrib- 
utable to  that  extra  danger. 

Deceased's  home  and  headquarters  were  in 
Saginaw.  He  had  a  desk  in  the  office  of  the 
company,  where  he  did  some  work.  One  of 
the  six  factories  he  supervised  was  in  Sagi- 
naw. His  traveling  consisted  of  journeying 
L.R.A.1916A. 


to  the  other  five  factories  from  time  to 
time  as  occasion  required.  On  the  day  in 
question  he  had  made  such  a  journey  to 
Sebewaing  and  returned  to  Saginaw  in  safe- 
ty. At  the  time  of  the  accident  he  was  in 
his  home  city,  walking  along  the  street,  ex- 
posed to  no  more  or  different  hazards  of 
travel  than  any  other  citizen,  nor  than  he 
would  have  been  had  he  spent  the  day  at 
the  company's  office  or  its  Saginaw  plant. 
How  is  the  legal  aspect  of  the  case  affected 
by  his  having  gone  to  Sebewaing  during 
that  day,  when  it  appears  that  his  duties 
of  the  day  were  ended  and  he  had  returned 
safely  to  Saginaw?  At  the  time  of  his  ac- 
cident he  was  passing  on  foot  along  a  famil- 
iar highway,  upon  which  was  ice  and  snow, 
— a  natural  condition  of  that  season  of  the 
year, — involving  an  increased  risk  and  add- 
ed danger  of  falling,  common  to  all  and 
known  to  all.  When  he  slipped  upon  the 
snow-covered  ice  and  fell,  he  was  not  rid- 
ing upon  nor  getting  on  or  off  any  convey- 
ance, public  or  private.  No  person  or  thing 
connected  with  transportation  or  travel 
touched  or  threatened  him.  While  it  is 
indicated  by  the  record  that  he  desired  to 
take  a  street  car,  and  was  walking  or  run- 
ning towards  one  for  that  purpose,  to  as- 
sert that  he  was  injured  in  attempting  to 
take  or  board  a  car  would  be  a  misleading 
overstatement.  He  slipped  and  fell  before 
reaching  it,  apparently  such  a  distance  away 
as  not  to  attract  the  attention  of  those  on 
the  car,  as  no  witnesses  to  the  accident 
were  produced.  The  Board  found  that  "he 
started  from  the  sidewalk  towards  the  car 
with  the  intention  of  boarding  the  same;" 
and  the  employer's  report,  which  is  the 
legal  basis  of  such  finding,  shows  that  he 
fell  "about  one-third  distance  between  side- 
walk and  car  track."  The  car  was  presum- 
ably somewhere  on  the  track  at  the  time, 
but  just  where  is  not  disclosed. 

Slipping  upon  snow-covered  ice  and  fall- 
ing while  walking,  or  running,  is  not  even 
what  is  known  as  peculiarly  a  "street  risk;" 
neither  is  it  a  recognized  extra  hazard  of 
travel  or  particularly  incidental  to  the  em- 
ployment of  those  who  are  called  upon  to 
make  journeys  between  towns  on  business 
missions. 

These  distinctions  are  recognized  and  the 
rule  correctly  stated  in  an  opinion  of  the 
Michigan  Industrial  Accident  Board,  filed  in 
Worden  v.  Commonwealth  Power  Co.  20 
Detroit  Leg.  News  No.  39  (December  27, 
1913),  as  follows:  "It  must  also  appear 
that  the  injury  arose  out  of  the  employ- 
ment and  was  a  risk  reasonably  incident 
to  such  employment,  as  distinguished  from 
risks  to  which  the  general  public  is  exposed. 
To  illustrate:  ....  On  the  other  hand, 
it  may  be  fairly  said  that  one  of  the  most 


314 


WORKMEN'S  COMPENSATION. 


common  risks  to  which  the  general  public 
is  exposed  is  that  of  slipping  and  falling 
upon  ice.  This  risk  is  encountered  by  peo- 
ple generally  irrespective  of  employment. 
» 

The  board  also  referred  to  the  fact  that 
claimant  was  upon  his  own  premises,  as  of 
some  force,  but  apparently  denied  an  award 
upon  the  ground  quoted,  which  is  well  sup- 
ported by  former  decisions. 

In  the  late  case  of  Sheldon  v.  Needham 
[1914]  W.  C.  &  Ins.  Rep.  274,  7  B.  W.  C.  C. 
471,  30  Times  L.  R.  590,  58  Sol.  Jo.  652, 
111  L.  T.  N.  S.  729,  a  servant  sent  to  mail 
a  letter  slipped  in  the  street,  upon  a  banana 
peel  or  some  other  slippery  object,  breaking 
her  leg.  Citing  as  controlling  several  cases 
involving  the  same  principle,  the  court  held 
that,  although  claimant  was  in  performance 
of  the  exact  thing  ordered  done,  there  could 


be  no  award  because  the  accident  was  not 
due  to  any  special  or  extra  risk  connected 
witli  and  incidental  to  her  employment,  but 
was  of  such  a  nature  as  to  be  equally  liable 
to  happen  under  like  circumstances  to  any- 
one in  any  employment,  and  whether  em- 
ployed or  not.  This  unfortunate  accident 
resulted  from  a  risk  common  to  all,  and 
which  arose  from  no  special  exposure  to 
dangers  of  the  road  from  travel  and  traffic 
upon  it;  it  was  not  a  hazard  peculiarly  in- 
cidental to  or  connected  with  deceased's 
employment,  and  therefore  is  not  shown  to 
have  a  causal  connection  with  it,  or  to  have 
arisen  out  of  it. 

For  the  foregoing  reasons,  we  are  impelled 
to  the  conclusion  that  the  order  and  award 
of  the  Industrial  Accident  Board  in  the 
premises  cannot  be  sustained. 

Reversed. 


Annotation — Recovery  of  compensation  for  injury  to  employee,  received 

while  on  the  street. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

It  is  a  general  rule  laid  down  by  the 
great  majority  of  the  cases  that  an  injury 
cannot  be  said  to  arise  out  of  the  em- 
ployment of  the  injured  workman  where 
it  occurs  upon  a  street,  from  causes  to 
which  all  other  persons  upon  the  street 
are  likewise  exposed. 

Thus,  compensation  has  been  denied 
in  the  following  cases,  where  the  injury 
occurred  in  the  manner  indicated :  Rod- 
ger v.  Paisley  School  Bd.  [1912]  S.  C. 
584,  [1912]  W.  C.  Rep.  157, 49  Scot.  L.  R. 
413,  5  B.  W.  C.  C.  547  (school  janitor 
taking  message  from  one  head  master  to 
another,  overcome  by  heat  while  on  the 
street) ;  Symmonds  v.  King  (1915)  8  B. 
W.  C.  C.  (Eng.)  189  (painter's  laborer 
obliged  to  cross  street  to  obtain  some 
paint,  knocked  by  a  tramcar) ;  Sheldon 
v.  Needham  (1914)  30  Times  L.  R.  (Eng.) 
590,  58  Sol.  Jo.  652,  137  L.  T.  Jo.  212 
[1914]  W.  C.  &  Ins.  Rep.  274,  111  L.  T. 
N.  S.  729,  7  B.  W.  C.  C.  171  (charwoman 
sent  to  post  a  letter  fell  and  broke  her 
leg  on  the  street) ;  Greene  v.  Shaw  [1912] 
2  I.  R.  430  [1912]  W.  C.  Rep.  25,  46  Ir. 
Law  Times,  18,  5  B.  W.  C.  C.  573  (work- 
man obliged  to  go  but  once  or  twice  a  day 
over  a  quiet  country  road,  injured  while 
riding  his  bicycle) ;  Slade  v.  Taylor 
[1915]  W.  C.  &  Ins.  Rep.  (Eng.)  53,  8 
B.  W.  C.  C.  65  (manager  of  branch  store, 
who  was  compelled  to  go  to  another 
branch  store  once  a  week,  slipped  off  his 
bicycle  and  injured  himself) ;  HOPKINS  v. 
MICHIGAN  SUGAR  Co.  (enroloyee  of  sugar 
L.R.A.1936A. 


company  employed  to  inspect  plants  in 
different  places,  who,  after  returning  to 
his  own  city,  slipped  while  running  to  get 
a  street  car  to  return  to  his  home) ;  New- 
man v.  Newman  (1915)  —  App.  Div.  — , 
155  N.  Y.  Supp.  665  (employee  in  meat 
market,  injured  while  on  street,  deliver- 
ing meat  on  foot) ;  De  Voe  v.  New  York 
State  R.  Co.  (1915)  169  App.  Div.  472. 
155  N.  Y.  Supp.  12  (motorman,  having 
closed  his  day's  work,  slipped  on  the 
street  while  going  to  have  his  watch  test- 
ed). 

Some  of  the  cases,  however,  make  a  dis- 
tinction in  the  case  of  workmen  whose 
duties  are  such  that  they  are  obliged  to 
be  continuously  upon  the  street,  or  at 
least  to  spend  a  considerable  portion  of 
their  time  there;  the  theory  being  that 
the  very  nature  of  their  employment  sub- 
jects them  to  street  dangers  more  than 
persons  generally  are  subjected,  and  con- 
sequently injuries  from  such  dangers 
must  be  considered  as  arising  out  of  their 
employment.  M'Neice  v.  Singer  Sewing 
Mach.  Co.  [1911]  S.  C.  12,  48  Scot.  L.  R. 
15,  4  B.  W.  C.  C.  351  (salesman  and  col- 
lector kicked  by  a  horse  while  riding  his 
bicycle  on  the  street) ;  Pierce  v.  Provi- 
dence Clothing  &  Supply  Co.  [1911]  I 
K.  B.  (Eng.)  997,  80  L.  J.  K.  B.  N.  S.  831, 
104  L.  T.  N.  S.  473,  27  Times  L.  R.  299, 
55  Sol.  Jo.  363,  4  B.  W.  C.  C.  242  (can- 
vasser and  collector  collided  with  street 
car  while  riding  his  bicycle) ;  Martin  v. 
Lobibond  [1914]  2  K.  B.  (Eng.)  227,  83 
L.  J.  K.  B.  N.  S.  806,  110  L.  T.  N.  S. 
455,  [1914]  W.  N.  47,  [1914]  W.  C.  & 
Ins.  Rep.  76,  7  B.  W.  C.  C.  243,  5  N.  C. 


INJURY  ON  STREET. 


315 


€.  A.  985  (draymen  held  to  be  more  likely 
to  be  knocked  down  by  a  motor  car  than 
other  members  of  the  general  public). 

Injury  to  a  coachman  who,  with  the 
knowledge  of  the  employer,  rode  a  bicycle 
to  a  postoffice  to  call  for  a  letter,  and 
was  injured  by  a  man  lurching  against  the 
bicycle  and  upsetting  it,  arose  out  of  the 
employment ;  and  the  fact  that  the  coach- 
man might  have  been  required  to  go  to 
the  postoffice  every  day  or  might  not 
have  been  obliged  to  go  for  a  fortnight, 


was  held  immaterial.  Bett  v.  Hughes 
(1914)  52  Scot.  L.  R.  93,  8  B.  W.  C.  C. 
362. 

In  Milwaukee  v.  Althoff  (1914)  156 
Wis.  68,  post,  327,  145  N.  W.  238,  4  N.  C. 
C.  A.  110,  compensation  was  allowed  for 
the  death  of  an  employee  who  fell  on 
the  street  and  injured  himself  while  go- 
ing from  the  place  where  he  received  or- 
ders relative  to  his  work,  to  the  place 
where  the  work  was  to  be  executed. 

W.   M.   G. 


NEW    JERSEY    COURT    OF    ERRORS 
AND   APPEALS. 

CATHERINE  ZABRISKIE,  Exrx.,  etc.,  of 
John  H.  Zabriskie,  Deceased,  Respt., 

v. 
ERIE  RAILROAD  COMPANY,  Appt. 

(86  N.  J.  L.  266,  92  Atl.  385.) 

Master  and  servant  —  toilet  facilities 
—  crossing  street  —  injury  —  course 
of  employment. 

Where  the  employer  failed  to  provide 
proper  toilet  facilities  for  employees  in  the 
building  where  they  were  at  work,  so  that 
they  were  obliged  to,  and  did,  habitually 
resort  for  such  facilities  during  the  work- 
ing hours  to  another  building  of  the  employ- 
er, which  lay  across  a  public  street,  and 
which  custom  persisted  for  a  considerable 
time,  and,  as  the  court  was  entitled  to  find, 
was  therefore  known  and  assented  to  by  the 
employer,  held  that,  where  the  deceased, 
while  crossing  the  street  in  working  hours 
to  reach  the  toilet  in  question,  was  struck 
by  a  passing  vehicle,  sustaining  injuries 
which  caused  his  death,  the  trial  court  was 
justified  in  finding  that  he  came  to  his  death 
by  an  accident  which  arose  out  of  and  in  the 
course  of  his  employment. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(November  16,  1914.) 

APPEAL  by  defendant  from  a  judgment 
of  the  Supreme  Court,  affirming  a  judg- 
ment of  the  Court  of  Common  Pleas  for 
Passaic  County  in  plaintiff's  favor  in  an 
action  under  the  workmen's  compensation 
act  to  recover  damages  for  personal  injuries. 
Affirmed. 

The  facts  are  stated  in  the  opinion. 

Headnote  by  PABKEB,  J. 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  a  recovery  of  compensation  for  in- 
juries received  while   seeking  toilet  facili- 
ties, see  annotation,  post,  317. 
L.R.A.1916A. 


Mr.  George  S.  Hobart,  with  Messrs. 
Collins  &  Corbin,  for  appellant: 

The  accident  did  not  arise  out  of  the 
employment. 

Pearce  v.  London  &  S.  W.  R.  Co.  2  W. 
C.  C.  152 ;  Rose  v.  Morrison  &  Mason,  80  L. 
J.  K.  B.  N.  S.  1103,  105  L.  T.  N.  S.  2,  4 

B.  W.  C.   C.  277;   Greene  v.  Shaw    [1912] 
2  I.  R.  430,  46  Ir.  Law  Times,  18,  5  B.  W. 

C.  C.  573;  Armitage  v.  Lancashire  &  Y.  R. 
Co.   [1902]  2  K.  B.  178,  71  L.  J.  K.  B.  N. 
S.  778,  66  J.  P.  613,  86  L.  T.  N.  S.  883,  18 
Times  L.  R.  648;   Collins  v.  Collins  [1907] 
2  I.  R.  104;  Murphy  v.  Berwick,  43  Ir.  Law 
Times,  146;  Blake  v.  Head,  106  L.  T.  N.  S. 
822,  28  Times  L.  R.  321,  5  B.  W.  C.  C.  303 ; 
Guthrie    v.    Kinghorn    [1913]    S.    C.    1155, 
50    Scot.    L.   R.   863,    6    B.   W.   C.    C.   887; 
Craske  v.  Wigan  [1909]  2  K.  B.  635,  78  L. 
J.  K.  B.  N.  S.  994,  101  L.  T.  N.  S.  6,  25 
Times  L.  R.  632,  53  Sol.  Jo.  560,  2  B.  W. 
C.  C.  35;  78  Cent.  L.  J.  59;  Steers  v.  Dunne- 
wald,  85  N.  J.  L.  449,  89  Atl.  1007,  4  N.  C. 
C.  A.  676. 

The  accident  did  not  arise  in  the  course 
of  the  employment. 

Anderson  v.  Balfour  [1910]  2  I.  R.  497,  44 
Ir.  Law  Times,  168,  3  B.  W.  C.  C.  588; 
Challis  v.  London  &  S.  W.  R.  Co.  [1905] 
2  K.  B.  154,  74  L.  J.  K.  B.  N.  S.  569,  53 
Week.  Rep.  613,  93  L.  T.  N.  S.  330,  21 
Times  L.  R.  486;  Greene  v.  Shaw  [1912] 
2  I.  R.  430,  46  Ir.  Law  Times,  18,  5  B.  W. 
C.  C.  573;  Clover  C.  &  Co.  v.  Hughes  [1910] 
A.  C.  242,  79  L.  J.  K.  B.  N.  S.  470,  102  L. 
T.  N.  S.  340,  26  Times  L.  R.  359,  54  S61.  Jo. 
375,  47  Scot.  L.  R.  885,  3  B.  W.  C.  C.  275; 
Conway  v.  Pumpherston  Oil  Co.  [1911]  S. 
C.  660,  48  Scot.  L.  R.  632,  4  B.  W.  C.  C. 
392;  Pope  v.  Hill's  Plymouth  Co.  102  L. 
T.  N.  S.  632,  3  B.  W.  C.  C.  339,  affirmed  in 
132  L.  T.  Jo.  31,  5  B.  W.  C.  C.  175. 

Messrs.  Michael  Dunn  and  Charles  B. 
Dunn,  for  respondent: 

Whether  the  automobile  or  the  locomotive 
of  both  were  the  cause  of  his  death  by 
striking  him,  decedent  came  to  his  death 
by  an  accident  arising  out  of  and  in  the 
course  of  his  employment. 


316 


WORKMEN'S  COMPENSATION. 


Anderson  v.  Balfour  [1910]  2  I.  R.  497, 
44  Ir.  Law  Times,  168,  3  B.  W.  C.  C.  588; 
Challis  v.  London  &  S.  W.  R.  Co.  [1905]  2 
K.  B.  154,  74  L.  J.  K.  B.  N.  S.  569,  53  Week. 
Rep.  613,  93  L.  T.  N.  S.  330,  21  Times  L. 
R.  486;  Greene  v.  Shaw  [1912]  2  I.  R.  430, 
46  Ir.  Law  Times,  18,  5  B.  W.  C.  C.  573; 
Bryant  v.  Fissell,  84  N.  J.  L."  72,  86  Atl. 
458,  3  N.  C.  C.  A.  585;  Rowland  v.  Wright 
[1909]  1  K.  B.  963,  77  L.  J.  K.  B.  N.  S. 
1071,  99  L.  T.  N.  S.  758,  24  Times  L.  R. 
852;  Perlsburg  v.  Muller,  35  N.  J.  L.  J. 
202. 

Parker,  J.,  delivered  the  opinion  of  the 
court : 

This  case  arose  under  the  workmen's 
compensation  act  of  1911.  The  question 
raised  is  the  usual  one,  viz.:  Whether  the 
deceased  came  to  his  death  by  reason  of  an 
accident  arising  out  of  and  in  the  course  of 
his  employment.  There  is  no  question 
whatever  but  that  the  deceased  %vas  killed 
by  an  accident,  but  the  appellant  insists 
that  the  accident  did  not  arise  out  of  the 
employment,  nor  did  it  arise  in  the  course 
of  the  employment;  and  the  question  before 
the  supreme  court  was  whether  there  was 
any  evidence  before  the  trial  court  to  justify 
such  a  finding.  If  there  was  such  evidence, 
the  finding  of  the  court  of  common  pleas 
is  conclusive.  Sexton  v.  Newark  Dist.  Teleg. 
Co.  84  N.  J.  L.  85,  86  Atl.  451,  3  N  C.  C. 
A.  569,  affirmed  in  86  N.  J.  L.  701,  91  Atl. 
1070;  Bryant  v.  Fissell,  84  N.  J.  L.  72,  86 
Atl.  458,  3  N.  C.  C.  A.  585.  The  supreme 
court  seems  to  have  gone  a  step  further  and 
to  have  made  substantially  its  own  finding 
upon  the  evidence.  This  was  unnecessary, 
but,  as  it  necessarily  included  a  finding  that 
there  was  evidence  to  support  the  finding 
of  the  trial  court,  which  is  sufficient  for 
an  affirmance,  we  do  not  concern  ourselves 
with  the  facts  further  than  to  ascertain 
whether  there  was  evidence  in  the  case 
which  the  trial  court  was  entitled  to  take 
hold  of  as  the  basis  for  its  finding  of  fact 
as  above. 

The  opinion  of  the  supreme  court  does 
not  state  the  evidence  with  entire  accuracy. 
The  deceased  was  not  obliged  to  cross  the 
railroad,  nor  was  he  injured  because  of  so 
crossing  it,  but  the  accident  occurred  in  this 
way:  The  tracks  of  the  defendant,  Erie 
Railroad  Company,  run  through  Paterson 
from  north  to  south,  crossing  Market  street, 
which  runs  east  and  west.  The  Paterson 
station  of  the  appellant  was  in  the  south- 
westerly angle  formed  by  Market  street  and 
the  said  tracks.  The  Morris  Beef  Building, 
where  the  deceased  was  regularly  employed 
by  the  appellant  as  a  carpenter,  was  in  the 
northwesterly  angle  of  Market  street  and 
the  railroad,  and  consequently  the  deceased, 
L.R.A.1916A. 


in  order  to  reach  the  station,  had  to  cross, 
not  the  railroad,  but  Market  street,  which 
was  a  public  highway  and  the  principal 
artery  of  traffic  in  Paterson.  There  was  no 
toilet  in  the  Morris  Beef  Building,  and  of 
course  the  defendant's  employees  had  to  go 
somewhere  to  satisfy  the  calls  of  nature. 
Apparently  the  most  convenient  place,  and 
the  place  where,  as  the  trial  court  was  justi- 
fied by  the  evidence  .in  finding,  they  had 
been  for  some  time  accustomed  to  going, 
was  the  men's  toilet  room  in  defendant's 
railroad  station  across  Market  street. 
There  was  evidence  that  this  was  the  only 
place  that  they  had  to  go  to,  and  that  for  a 
year  or  more  prior  to  the  accident  it  was 
the  habitual  practice  of  defendant's  em- 
ployees working  in  the  Morris  Beef  Build- 
ing to  use  the  station  toilet  for  their  person- 
al needs.  At  the  time  of  the  accident,  the 
deceased  was  on  his  way  from  the  Beef 
Building  across  Market  street,  and  bound 
for  the  station  toilet,  when  he  was  struck 
by  an  east-bound  automobile  on  Market 
street,  and  thrown  or  carried  over  on  the 
railroad  track,  where  he  was  again  struck 
by  a  north-bound  train  that  was  just  start- 
ing from  the  station.  This  occurred  about 
11  A.  M. 

There  can  be  no  doubt  that  the  trial 
court  was  fully  justified  in  finding  that  the 
accident  occurred  in  the  course  of  the  em- 
ployment of  the  deceased ;  that  it  took  place 
during  the  regular  working  hours,  and  while 
he  was  answering  a  call  of  nature  which  is 
liable  to  occur  at  any  time.  It  was  argued 
that  he  was  not  doing  his  employer's  work 
at  the  time,  but  there  is  little  or  no  force 
in  this,  for  in  the  end  it  is  as  important  to 
the  employer  as  to  the  employee  that  the 
latter  may  do  his  work  without  unneces- 
sary physical  inconvenience.  The  trial 
court  was  also  justified  in  finding  upon  the 
evidence  adduced  that  the  accident  arose 
out  of  the  employment.  The  difficulty  in 
the  case  arises  from  the  fact  that  the  place 
where  the  deceased  was  struck  was  a  public 
street,  and  that  he  was  struck  by  an  inde- 
pendent agency,  to  wit,  an  automobile 
driven  by  a  stranger  and  lawfully  in  said 
street.  Hence  it  is  argued  that  the  deceased 
was  not,  and  could  not  have  been,  injured  by 
any  cause  for  which  the  master  was  re- 
sponsible, or  to  which  he  was  subjected  by 
the  conditions  of  his  employment.  But  we 
consider  this  argument .  also  to  be  without 
support.  It  is  not  only  conceivable,  but 
it  is  a  matter  of  daily  occurrence,  that  em- 
ployees are  required  to  do  their  work  un- 
der conditions  which  render  them  liable  to 
injury  by  outside  agencies.  It  is  only 
necessary  to  cite  the  case  of  Newark  Paving 
Co.  v.  Klotz,  85  N.  J.  L.  432,  91  Atl.  91, 
recently  affirmed  here  on  the  opinion  of  the 


ZABRISKIE  v.  ERIE  R.  CO. 


317 


supreme  court  in  86  N.  J.  L.  690,  92  Atl. 
1086,  where  the  place  of  work  of  the  de- 
ceased was  in  a  public  street,  and  during 
working  hours,  while  waiting  for  his  work 
to  begin,  or  attending  to  some  incidental 
matters  in  the  interim,  Klotz  was  struck 
by  a  trolley  car  and  killed.  It  was  there 
held  that  the  accident  arose  out  of  and  in 
the  course  of  his  employment;  and  the  only 
ground  for  claiming  the  existence  of  a  dis- 
tinction between  that  case  and  the  case  at 
bar  is  that  in  the  Klotz  Case  the  deceased 
was  at  the  place  where  he  had  to  do  his 
work,  and  in  the  present  case  the  deceased 
had  left  the  place  where  lie  actually  worked 
and  was  on  his  way.  to  a  convenience.  The 
distinction  is  unsubstantial;  for  if  the 
trial  court  found,  as  it  evidently  must 
have  found  and  was  entitled  to  find,  that  by 
reason  of  the  lack  of  proper  appliances  in 
the  Morris  Building  and  the  consequent 
necessity  of  going  elsewhere, — a  condition 
for  which  the  employer  was,  of  course,  re- 
sponsible,— the  practice  had  arisen  and  been 
in  force  for  an  extended  period  of  workmen 
resorting  to  the  only  place  available,  to 
reach  which  they  were  necessarily  obliged 
to  cross  a  public  street,  and  that  this 
practice  was  known  and  assented  to  by  the 
employer  (Dierkes  v.  Hauxhurst  Land  Co. 
80  N.  J.  L.  369,  34  L.R.A.(N.S.)  693,  79  Atl. 
361,  83  N.  J.  L.  623,  83  Atl.  911),  the  work- 
man was  as  much  obliged  by  the  conditions 
of  his  employment  to  be  where  he  was  at 
the  time  when  he  was  struck  as  if  he  had 
been  a  laborer  tamping  paving  blocks  in  the 
middle  of  the  street.  Viewed  in  this  aspect, 
the  danger  was  one  which,  in  the  language 
of  the  cases,  was  peculiar  to  the  employ- 
ment, in  that  the  absence  of  proper  facilities 
at  the  shop  and  the  necessity  of  crossing  the 
street  to  reach  them  gave  rise  to  it.  It  was 
not  the  danger  of  an  ordinary  member  of 
the  public  crossing  a  street  on  his  own 
business,  but  was  the  subjection  of  the  em- 
ployee to  that  danger  by  the  conditions  of 
his  employment.  The  fact  that  the  accident 
may  have  been,  and  probably  was,  due  to 
the  negligence  of  the  driver  of  the  auto- 
mobile, and  perhaps  also  to  the  contributory 
negligence  of  the  deceased,  tends  to  cloud 


the  issue,  but  does  not  differentiate  the 
situation  from  that  of  any  workman  who 
is  required  in  the  performance  of  his  work 
to  go  into  a  dangerous  place  and  incur  the 
dangers  connected  with  that  place. 

There  were,  therefore,  two  concurring 
causes  of  the  accident;  namely,  the  auto- 
mobile and  the  necessity  of  crossing  the 
street,  for  the  latter  of  which  the  employer 
was  responsible.  In  this  aspect  the  case 
resembles  McNicol's  Case,  215  Mass.  497, 
ante.  306,  102  N.  E.  697,  4  N.  C.  C.  A.  522, 
where  deceased  was  put  to  work  next  or 
near  to  a  fellow  workman  who  was  known 
to  the  employer  to  be  addicted  to  drink  and 
was  ugly  when  in  his  cups.  While  deceased 
was  at  work,  this  man,  being  drunk,  at- 
tacked and  killed  him,  or  injured  him  so 
that  he  died,  and  the  supreme  court  of 
Massachusetts  held  that  the  injury  arose 
out  of  and  in  the  course  of  the  employment; 
putting  its  decision  upon  the  causal  connec- 
tion between  the  injury  of  the  deceased  and 
the  conditions  under  which  the  defendant 
required  him  to  work.  In  the  language  of 
the  Massachusetts  court,  the  act  of  the 
automobile  driver  and  the  conditions  of  em- 
ployment that  required  the  deceased  to 
cross  a  street  were  contributing  proximate 
causes,  the  latter  of  which  was  an  actual 
risk  of  the  employment. 

The  case  of  Pearce  v.  London  &  S.  W.  R 
Co.  (1899)  2  W.  C.  C.  152,  is  relied  on  by 
counsel  for  appellant.  That  case  was  af- 
firmed in  the  court  of  appeal,  but  the  af- 
firmance was  placed  upon  a  ground  quite 
different  from  that  taken  by  the  court  be- 
low; and  in  Elliott  v.  Rex  (1904)  116  L. 
T.  Jo.  314,  6  W.  C.  C.  27,  the  court  refused 
to  follow  the  Pearce  Case,  and  sustained 
an  award  in  favor  of  a  workman  injured 
while  coming  from  the  toilet  during  the 
dinner  hour. 

Our  conclusion  is  that  the  evidence  sus- 
tained a  finding  by  the  trial  court  that  the 
accident  arose  both  out  of  and  in  the  course 
of  the  employment  of  deceased,  and  that  the 
judgment  of  the  Supreme  Court,  affirming 
the  judgment  of  the  Common  pleas,  should 
in  turn  be  affirmed. 


Annotation — Injuries  received  while  seeking  toilet  facilities  as  "arising  out 

of"  the  employment. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

Undoubtedly,  all  of  the  courts  would 
sustain  the  decision  of  the  New  Jersey 
court  in  ZABRISKIE  v.  ERIE  R.  Co.,  that 
risks  necessarily  incurred  by  an  employee 
in  seeking  required  toilet  facilities  must 
L.R.A.1916A. 


be  held  to  arise  out  of  and  in  the  course 
of  the  employment. 

In  De  Filippis  v.  Falkenberg  (1915) 
-  App.  Div.  — ,  155  N.  Y.  Supp.  761,  it 
was  said  that  the  claimant,  while  accept- 
ing the  conveniences  of  a  toilet  room 
maintained  by  the  employer,  was  "still 
in  the  employ  of  the  master." 


318 


WORKMEN'S  COMPENSATION. 


However,  a  workman  who  goes  into 
dangerous  or  unauthorized  places  for 
that  purpose  does  so  at  his  own  risk, 
and  no  compensation  is  recoverable  for 
injuries  received  while  he  is  in  such  un- 
authorized and  dangerous  places.  Rose 
v.  Morrison  (1911)  80  L.  J.  K.  B.  N.  S. 
(Eng.)  1103,  105  L.  T.  N.  S.  2,  4  B.  W. 
C.  C.  277.  Particularly,  if  adequate 
places  have  been  provided  by  the  employ- 
er. Thomson  v.  Flemington  Coal  Co. 
[1911]  S.  C.  823,  48  Scot.  L.  R.  740,  4  B. 
W.  C.  C.  406 ;  Cook  v.  Manvers  Main  Col- 
lieries (1914)  7  B.  W.  C.  C.  (Eng.)  696. 

So,  the  employers  cannot  be  held  liable 
for  injuries  received  by  a  workman  where 
he  leaves  the  sphere  of  his  employment 
and  goes  for  purposes  of  his  own  onto 


private  property,  where  the  employers- 
cannot  follow  him,  even  if  they  so  wish. 
(Cogdon  v.  Sunderland  Gas  Co.  (1907;. 
C.  C.)  1  B.  W.  C.  C.  (Eng.)  156. 

But  upon  the  ground  that  the  county 
court  judge  was  justified  in  drawing  the 
inference  that  the  workman  went  to  the 
unauthorized  place  as  a  matter  of  neces- 
sity, and  not  of  his  choice,  an  award  of 
compensation  was  upheld  in  the  case  of 
a  miner,  who,  after  receiving  his  lamp 
at  the  lamp  cabin,  went  to  answer  a  call 
of  nature  at  a  place  sometimes  used  by 
the  miners  in  case  of  necessity,  and  who 
was  killed  on  a  siding  over  which  he  was 
obliged  to  pass.  Lawless  v.  Wigan  Coal 
&  I.  Co.  (1908)  124  L.  T.  Jo.  (Eng.)  532, 
1  B.  W.  C.  C.  153.  W.  M.  G. 


MASSACHUSETTS     SUPREME    JUDI- 
CIAL,   COURT. 

EMILY  SUNDINE,  Employee. 
F.  L.  DUNNE  &  COMPANY,  Employer. 

LONDON  GUARANTEE  &  ACCIDENT 
COMPANY,  LIMITED,  Insurer,  Appt. 

(218  Mass.   1,  105  N.   E.   433.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  injury  while  leaving 
premises  for  luncheon. 

An  injury  to  one  employed  by  the  week, 
upon  stairs  which  are  not  under  the  em- 
ployer's control,  but  afford  the  only  means 
of  going  to  and  from  the  workroom,  while 
leaving  the  premises  for  the  purpose  of  pro- 
curing a  luncheon,  arises  out  of  and  in  the 
course  of  his  employment,  within  the  mean- 
ing of  the  workmen's  compensation  act. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  m  Dig.  1-52  N.  8. 

(May  22,  1914.) 

APPEAL  by  insurer  from  a  decree  of  the 
Superior  Court  for  Suffolk  County  in 
favor  of  the  employee  in  a  proceeding  to  de- 
termine her  right  to  compensation  as  an  em- 
ployee of  insured  under  the  workmen's  com- 
pensation act.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  H.  S.  Avery,  for  appellant: 

The  injury  sustained  did  not  arise  out  of 
and  in  the  course  of  employment  within  the 
meaning  of  the  workmen's  compensation  act. 

Caton   v.   Summerlee   &   M.   Iron   &   Coal 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  the  recovery   of  compensation   for 
injuries    received    while    procuring    refresh- 
ments, see  annotation,  post,  320. 
L.R.A.1916A. 


Co.  39  Scot.  L.  R.  762,  4  Sc.  Sess.  Gas.  5th 
Series,  989,  10  Scot.  L.  T.  204. 

Sundine  was  not  an  employee  of  the  in- 
surer. 

Dane  v.  Cochrane  Chemical  Co.  164  Mass. 
453,  41  N.  E.  678. 

The  way  upon  which  the  injury  occurred 
was  not  a  way  over  which  F.  L.  Dunne  & 
Company  as  employers  had  any  control,  nor 
did  they  owe  any  duty  to  their  employees  to 
see  that  its  condition  was  safe,  so  that  an 
employee  of  Olsen  could  claim  no  greater 
rights  than- those  of  the  insured. 

Hawkes  v.  Broadwalk  Shoe  Co.  207  Mass. 
117,  44  L.R.A.(N.S.)  1123,  92  N.  E.  1017. 

The  ways  or  means  of  exit  must  be  pro- 
vided by  the  employer,  and  must  be  inci- 
dental to  and  a  part  of  the  contract  of  em- 
ployment. The  employee  who  has  stopped 
his  work  for  the  employer,  and  has  become 
his  own  master,  is  no  longer  acting  within 
scope  of  his  employment,  even  though  he 
may  be  on  premises  in  control  of  the  em- 
ployer. 

Gooch  v.  Citizens'  Electric  Street  R.  Co. 
202  Mass.  254,  23  L.R.A.(N.S.)  960,  88  N. 
E.  591;  Dickinson  v.  West  End  Street  R. 
Co.  177  Mass.  365,  52  L.R.A.  326,  83  Am. 
St.  Rep.  284,  59  N.  E.  60,  9  Am.  Neg.  Rep. 
293;  Doyle  v.  Fitchburg  R.  Co.  162  Mass. 
66,  25  L.R.A.  157,  44  Am.  St.  Rep.  325,  37 
N.  E.  770;  Palmer  v.  Lawrence  Mfg.  Co.  12 
Allen,  69;  Morier  v.  St.  Paul,  M.  &  M.  R. 
Co.  31  Minn.  35],  47  Am.  Rep.  793,  17  N. 
W.  952;  Baird  v.  Pettit,  70  Pa.  477;  Balti- 
more &  O.  R.  Co.  v.  State,  33  Md.  542; 
State  use  of  Abell  v.  Western  Maryland  R. 
Co.  63  Md.  433. 

Mr.  Richard  J.  Lane,  for  appellee: 

The  petitioner's  injury  arose  out  of  and 
in  the  course  of  her  employment. 

McNicoPs  Case,  215  Mass.  498,  ante,  306, 
102  N.  E.  697,  4  N.  C.  C.  A.  522;  Gill- 


RE  SUNDINE. 


319 


shannon  v.  Stony  Brook  R.  Corp.  10  Cush. 
228;  Kilduff  v.  Boston  Elev.  R.  Co.  195  | 
Mass.  307,  9  L.R.A.(N.S-)  873,  81  N.  E. 
191;  McGuirk  v.  Shattuck,  160  Mass.  45, 
39  Am.  St.  Rep.  454,  35  N.  E.  130;  Olsen 
v.  Andrews,  168  Mass.  261,  47  N.  E.  90,  2 
Am.  Neg.  Rep.  570;  Boyle  v.  Columbian 
Fire  Proofing  Co.  182  Mass.  93,  64  N.  E. 
726;  Dawbarn,  Workmen's  Compensation 
Act,  4th  ed.  118;  Blovelt  v.  Sawyer  [1904] 
1  K.  B.  271,  73  L.  J.  K.  B.  N.  S.  155,  68 
J.  P.  110,  52  Week.  Rep.  503,  89  L.  T.  N.  S. 
658,  20  Times  L.  R.  105;  Moore  v.  Man- 
chester Liners  [1910]  A.  C.  498,  79  L.  J. 
K.  B.  N.  S.  1175,  3  B.  W.  C.  C.  527,  103 
L.  T.  N.  S.  226,  26  Times  L.  R.  618,  54  Sol. 
Jo.  703;  Sharp  v.  Johnson  &  Co.  [1905]  2 
K.  B.  139,  74  L.  J.  K.  B.  N.  S.  566,  53  Week. 
Rep.  597,  92  L.  T.  N.  S.  675,  21  Times  L. 
R.  482;  Gane  v.  Norton  Hill  Colliery  Co. 
[1909]  2  K.  B.  539,  78  L.  J.  K.  B.  N.  S. 
921,  2  B.  W.  C.  C.  42,  100  L.  T.  N.  S.  979, 
25  Times  L.  R.  640;  Keenan  v.  Flemington 
Coal  Co.  40  Scot.  L.  R.  144,  5  Sc.  Sess.  Gas. 
5th  series,  164,  10  Scot.  L.  T.  409;  Mac- 
Kenzie  v.  Coltness  Iron  Co.  41  Scot.  L.  R. 
6;  Cremins  v.  Guest,  Keen  &  Nettlefolds 
[1908]  1  K.  B.  469,  77  L.  J.  K.  B.  N.  S. 
326,  98  L.  T.  N.  S.  335,  24  Times  L.  R.  189; 
Leach  v.  Oakley  Street  &  Co.  [1911]  1  K. 
B.  523,  80  L.  J.  K.  B.  N.  S.  313,  103  L.  T. 
N.  S.  778,  27  Times  L.  R.  124,  55  Sol.  Jo. 
124,  4  B.  W.  C.  C.  91. 

Sheldon,  J.,  delivered  the  opinion  of  the 
court : 

It  is  provided  by  statute  (Stat.  1911, 
chap.  751,  pt.  3,  §  17)  that  "if  a  subscriber 
enters  into  a  contract,  written  or  oral,  with 
an  independent  contractor  to  do  such  sub- 
scriber's work,  .  .  .  and  the  association 
would,  if  such  work  were  executed  by  em- 
ployees immediately  employed  by  the  sub- 
scriber, be  liable  to  pay  compensation  under 
this  act  to  those  employees,  the  association 
shall  pay  to  such  employees  any  compensa- 
tion which  would  be  payable  to  them  under 
this  act,"  if  the  independent  contractor  were 
a  subscriber.  By  the  word  "association"  is 
meant  the  Massachusetts  Employees'  Insur- 
ance Association  (part  5,  §  2,  of  the  same 
act)  ;  and  this  insurance  company  is  under 
the  same  liability  that  the  association  would 
have  been  (Stat.  1912,  chap.  571,  §  17).  It 
follows  that  the  petitioner  has  the  same 
rights  against  this  insurance  company  as  if 
it  had  directly  insured  her  employer  Olsen. 

The  insurer  does  not  deny  this,  but  it 
contends  that  the  petitioner's  injury  did  not 
arise  "out  of  and  in  the  course  of"  her  em- 
ployment within  the  meaning  of  part  2,  §  1, 
of  the  act  first  referred  to.  This  is  because 
she  was  injured  at  about  noon,  after  she  had 
left  the  room  in  which  she  worked,  for  the 
L.R.A.1916A. 


purpose  of  getting  a  lunch,  and  upon  a  flight 
of  stairs  which,  though  affording  the  only 
means  of  going  to  and  from  her  workroom, 
was  yet  not  under  the  control  either  of  Ol- 
sen, her  employer,  or  of  F.  L.  Dunne  &  Com- 
pany, for  whose  work  Olsen  was  an  inde- 
pendent contractor. 

The  first  contention,  that  she  was  not  in 
the  employ  of  Olsen  while  she  was  going  to 
lunch,  cannot  be  sustained.  Her  employ- 
ment was  by  the  week.  It  would  be  too 
narrow  a  construction  of  the  contract  to 
say  that  it  was  suspended  when  she  went 
out  for  this  merely  temporary  purpose,  and 
was  revived  only  upon  her  return  to  the 
workroom.  It  was  an  incident  of  her  em- 
ployment to  go  out  for  this  purpose.  Boyle 
v.  Columbian  Fire  Proofing  Co.  182  Mass. 
93,  102,  64  N.  E.  726.  The  decisions  upon 
similar  questions  under  the  English  act  are 
to  the  same  effect.  Blovelt  v.  Sawyer  [1904] 

1  K.  B.  271,  73  L.  J.  K.  B.  N.  S.  155,  68 
J.  P.  110,  52  Week.  Rep.  503,  89  L.  T.  N.  S. 
658,  20  Times  L.  R.  105,  which  went  on  the 
ground   that  the   dinner   hour,   though   not 
paid  for,  was  yet  included  in  the  time  of 
employment.     Moore  v.  Manchester  Liners, 
3  B.  W.  C.  C.  527,  [1930]  A.  C.  498,  79  L.  J. 
K.  B.  N.  S.  1175,  103  L.  T.  N.  S.  226,  26 
Times  L.  R.  618,  54  Sol.  Jo.  703,  where  the 
House  of  Lords  reversed  the  decision  of  the 
court  of  appeal,  reported  in  [1909]  1  K.  B. 
417,  78  L.  J.  K.  B.  N.  S.  463,  100  L.  T. 
N.  S.  164,  25  Times  L.  R.  202,  and  held, 
following  the  dissenting  opinion  of  Moulton, 
L.    J.,   that   a   temporary   absence   by    per- 
mission, though  apparently  of  longer  dura- 
tion than  would  have  been  likely  in  the  case 
before  us,  did  not  suspend  the  employment, 
and  that  an  injury  occurring  during  such  a 
temporary  absence  arose  "out  of  and  in  the 
course  of"  the  employment.    Gane  v.  Norton 
Hill  Colliery  Co.  2  B.  W.  C.  C.  42,  [1909] 

2  K.  B.  539,  78  L.  J.  K.  B.  N.  S.  921,  10 
L.  T.  N.  S.  979,  25  Times  L.  R.  640 ;  Keenan 
v.  Flemington  Coal  Co.  40  Scot.  L.  R.  144, 
5  Sc.  Sess.  Cas.  5th  series,  164,  10  Scot.  L. 
T.  409;   McKenzie  v.  Coltness  Iron  Co.  41 
Scot.  L.  R.  6. 

Nor  do  we  regard  it  as  decisive  against 
the  petitioner  that  she  was  injured  while 
upon  stairs  of  which  neither  Olsen  nor  F.  L. 
Dunne  &  Company  had  control,  though  they 
and  their  employees  had  the  right  to  use 
them.  These  stairs  were  the  only  means 
available  for  going  to  and  from  the  premises 
where  she  was  employed,  the  means  which 
she  practically  was  invited  by  Olsen  and  by 
F.  L.  Dunne  &  Company  to  use.  In  this 
respect,  the  case  resembles  Moore  v.  Man- 
chester Lines,  supra;  and  that  case,  decided 
under  the  English  act  before  the  passage  of 
our  statute,  must  be  regarded  as  of  great 


320 


WORKMEN'S  COMPENSATION. 


weight.  McNichol's  Case,  215  Mass.  497, 
499,  ante,  306,  102  N.  E.  697,  4  N.  C.  C.  A. 
522.  It  is  true  that  before  the  passage  of 
Stat.  1911,  chap.  751,  the  petitioner  could 
not  have  held  her  employer  for  this  injury. 
Havvkes  v.  Broadwalk  Shoe  Co.  207  Mass. 
117,  44  L.R.A.(N.S.)  1123,  92  N.  E.  1017. 
But  that  now  is  not  a  circumstance  of  much 
importance,  for  one  of  the  purposes  of  our 
recent  legislation  was  to  increase  the  right 


of  employees  to  "be  compensated  for  injuries 
growing  out  of  their  employment. 

It   was   a  necessary   incident   of  the   em- 
ployee's   employment    to    use    these    stairs. 

|  We  are  of  opinion  that,  according  to  the 
plain  and  natural  meaning  of  the  words,  an 
injury  that  occurred  to  her  while  she  was 
so  using  them  arose  "out  of  and  in  the 

|  course  of"  her  employment.  The  decree  of 
the  Superior  Court  must  be  affirmed. 


Annotation — Injuries  received  while  procuring  refreshment,  as  arising  out 
of  and  in  the  course  of  the  employee's  employment. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation  ante,  23. 

The  decision  in  RE  SUNDINE  is  sup- 
ported by  a  number  of  decisions  of  the 
English  courts  which  very  generally  rec- 
ognize that  the  procuring  of  food  or 
other  refreshment  is  essential  to  the  em- 
ployment of  a  workman,  and  the  latter 
does  not,  as  a  matter  of  course,  go  out- 
side of  his  employment,  when  he  leaves 
off  active  work  in  order  to  secure  food 
or  drink.  Carinduff  v.  Gilmore  (1914) 
48  Ir.  Law  Times,  137,  [1914]  W.  C.  & 
Ins.  Rep.  247,  7  B.  W.  C.  C.  981  (girl 
employed  on  threshing  machine  entitled 
to  compensation  for  injuries  received 
while  partaking  of  a  lunch  furnished  by 
the  employer) ;  Low  v.  General  Steam 
Fishing  Co.  [1909]  A.  C.  (Eng.)  523,  78 
L.  J.  P.  C.  N.  S.  148,  101  L.  T.  N.  S.  401, 
25  Times  L.  R.  787,  53  Sol.  Jo.  763 
(watchman  on  a  quay  whose  watch  con- 
tinued for  twenty-five  hours,  and  who 
was  to  furnish  his  own  food  and  drink, 
not  outside  scope  of  duty  in  leaving 
place  of  duty  for  a  short  time  to  get  a 
drink) ;  Martin  v.  Lovibond  [1914]  2 
K.  B.  (Eng.)  227,  83  L.  J.  K.  B.  N.  S. 
806,  110  L.  T.  N.  S.  455,  [1914]  W.  N. 
47,  [1914]  W.  C.  &  Ins.  Rep.  76,  7  B. 
W.  C.  C.  243  (drayman  on  duty  from  8 
o'clock  in  the  morning  until  8  o'clock  in 
the  evening  not  out  of  his  employment  in 
stopping  dray  and  crossing  the  street  to 
a  public  inn  to  get  a  glass  of  beer,  and 
returning  within  two  minutes  to  his 
dray) ;  Keenan  v.  Flemington  Coal  Co. 
(1902)  5  Sc.  Sess.  Cas.  5th  series,  164, 
40  Scot.  L.  R.  144,  10  Scot.  L.  T.  409 
(employee  injured  upon  returning  to 
his  work  from  procuring  a  drink  of 
water) ;  Earnshaw  v.  Lancashire  &  Y.  R. 
Co.  (1903;  C.  C.)  115  L.  T.  Jo.  (Eng.) 
89,  5  W.  C.  C.  28  (employee  went,  with 
employer's  knowledge,  to  cabin  upon  em- 
ployer's premises  for  tea,  and  was  in- 
L.K.A.lUlfiA. 


jured  while  returning  from  the  cabin) ; 
Morris  v.  Lambeth  Borough  Council 
(1905)  22  Times  L.  R.  (Eng.)  22  (night 
watchman  injured  by  falling  of  a  shanty 
in  which  he  went  to  cook  some  food). 

In  M'Laughlan  v.  Anderson  [1911]  S. 
C.  529,  48  Scot.  L.  R.  349,  4  B.  W.  C. 
C.  376,  recovery  of  compensation  was  al- 
lowed where  a  workman  fell  from  a 
wagon  in  which  he  was  riding  in  the 
course  of  his  employment,  while  attempt- 
ing to  recover  his  pipe,  which  he  had 
dropped.  The  court  said  that  a  work- 
man of  his  sort  might  reasonably  smoke, 
might  reasonably  drop  his  pipe,  and 
might  reasonably  attempt  to  pick  it  up 
again. 

The  mere  fact  that  a  workman  is  paid 
by  the  hour  does  not  disentitle  him  to 
compensation  for  injuries  received  while 
engaged  in  eating  his  lunch.  Blovelt  v. 
Sawyer  [1904]  1  K.  B.  (Eng.)  271,  73 
L.  J.  K.  B.  N.  S.  155,  68  J.  P.  110,  52 
Week  Rep.  503,  89  L.  T.  N.  S.  658,  20 
Times  L.  R.  105. 

But  the  lunch  hour  of  a  law  writer  is 
not  a  part  of  the  time  of  his  employ- 
ment. McKrill  v.  Howard  (1909)  2  B. 
W.  C.  C.  (Eng.)  460. 

A  decision  of  the  Michigan  court  is 
somewhat  in  conflict  with  the  weight  of 
authority.  In  Hills  v.  Blair  (1914)  182 
Mich.  20,  148  N.  W.  243,  7  N.  C.  C.  A. 
409,  it  was  held  that  an  employee  who, 
contrary  to  his  usual  custom,  left  his 
place  of  employment  at  the  noon  hour  to 
go  home  to  his  lunch,  because,  upon  this 
occasion,  he  had  failed  to  bring  it  with 
him,  as  was  customary  with  the  crew, 
and  as  he  had  always  done  before,  was 
not,  while  so  going  to  his  dinner,  in 
the  employment,  although  at  the  time 
of  his  injury  he  was  still  upon  the 
master's  premises.  The  court  said  he 
was  going  upon  a  mission  of  his  own, 
merely  to  please  himself.  W.  'M.  G. 


RE  BRIGHTMAN. 


321 


MASSACHUSETTS     SUPREME    JUDI- 
CIAL  COURT. 

RE    EMMA    L.    BRIGHTMAN,    Widow    of 
Ira  B.  Brightman,  Deceased,  Dependent. 

J.  C.  TERRY,  Employer. 


LIFE    INSURANCE    COMPANY, 
Insurer,  Appt. 


(220  Mass.  17,  107  N.  E.  527.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  appeal  —  findings  un- 
supported by  evidence. 

1.  Where,  by   statute,   the  committee  on 
arbitration  under  the  workmen's  compensa- 
tion act  is  required  to  report  all  the  evi- 
dence before  it,  a  losing  party  may  argue 
that  the  findings  are  not  supported  by  the 
evidence,  although  it  does  not  affirmatively 
appear  that  all  the  material  evidence  is  set 
out. 

For  other  cases,  see  Appeal  and  Error,  VII. 

d,  in  Dig.  1-52  N.  8. 
Same   —   death    from   heart   disease   — 

course  of  employment. 

2.  The    death    from    heart    disease    of    a 
cook  upon  a  lighter,  where  he  is  required  to 
live,  due  to  exertions  in  saving  his  personal 
effects  when  the  vessel  begins  to  sink,  arises 
out  of  and  in  the  course  of  his  employment 
within  the  operation  of  the  workmen's  com- 
pensation act. 

For  other  cases,  see  Master  and  Servant, 
II.  a,  1,  in  Dig.  1-52  N.  8. 

(December  31,  1914.) 

APPEAL  by  the  insurer  from  the  decision 
of  the  Industrial  Accident  Board  in 
favor  of  the  widow  in  a  proceeding  under 
the  workmen's  compensation  act  to  recover 
compensation  for  the  death  of  her  husband. 
Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  John  T.  Swift  for  appellant. 

Messrs.  Richard  P.  Borden  and  James 
H.  Ken  yon,  Jr.,  for  dependent: 

There  is  no  question  for  the  determina- 
tion of  the  court. 

Pigeon's  Case,  216  Mass.  51,  102  N.  E. 
932,  Ann.  Gas.  1915A,  737,  4  N.  C.  C.  A. 
516;  Donovan's  Case,  217  Mass.  76,  104  N. 
E.  431,  Ann.  Cas.  1915C,  778,  4  N.  C.  C. 
A.  549;  Herrick's  Case,  217  Mass.  Ill,  104 
N.  E.  432,  7  N.  C.  C.  A.  554;  Diaz's  Case, 
217  Mass.  36,  104  N.  E.  384,  5  N.  C.  C.  A. 
609;  Bentley's  Case,  217  Mass.  79,  104  N. 
E.  432,  4  N.  C.  C.  C.  A.  559. 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to   recovery   of   compensation   for   in- 


juries received  while  trying  to  save  personal 


The  employee  was  acting  in  the  course  of 
the  employment. 

Pigeon's  Case,  216  Mass.  51,  102  N.  E. 
932,  Ann.  Cas.  1915A,  737,  4  N.  C.  C.  A. 
516;  Bentley's  Case,  217  Mass.  79,  104  N. 

E.  432,  4  N.  C.  C.  A.  559;  Diaz's  Case,  217 
Mass.  36,  104  N.  E.  384,  5  N.  C.  C.  A.  609; 
McNicol's  Case,  215  Mass.  497,  ante,  306,  102 
N.  E.  697,  4  N.  C.   C.  A.    522;     Sundine's 
Case,  218  Mass.  1,  ante,  318,  105  N.  E.  433, 
5  N.  C.  C.  A.  616;  M'Lauchlin  v.  Anderson 
[1911]    S.  C.  529,  48  Scot.  L.  R.  349,  4'B. 
W.  C.  C.  376;  Cokolon  v.  The  Kentra,  5  B. 
W.  C.  C.  658. 

The  death  of  the  employee  arose  out  of 
and  in  the  course  of  his  employment. 

M'Lauchlin  v.  Anderson  [1911]  S.  C.  529, 
48  Scot.  L.  R.  349,  4  B.  W.  C.  C. 
376;  McNicol's  Case,  215  Mass.  497, 
ante,  306,  102  N.  E.  697,  4  N.  C.  C.  A. 
522;  Moore  v.  Manchester  Liners  [1910]  A. 
C.  498,  79  L.  J.  K.  B.  N.  S.  1175,  103  L.  T. 
N.  S.  226,  26  Times  L.  R.  618,  54  Sol.  Jo. 
703,  3  B.  W.  C.  C.  527  ;  Canavan  v.  The  Uni- 
versal, 3  B.  W.  C.  C.  355;  Clover,  C.  &  Co. 
v.  Hughes  [1910]  A.  C.  242,  79  L.  J.  K.  B. 
N.  S.  470,  102  L.  T.  N.  S.  340,  26  Times  L. 
R.  359,  54  Sol.  Jo.  375,  47  Scot.  L.  R.  885, 
3  B.  W.  C.  C.  275;  Yates  v.  South  Kirby, 

F.  &  H.  Collieries   [1910]   2  K.  B.  538,  79 
L.  J.  K.  B.  N.  S.  1035,  103  L.  T.  N.  S.  170, 
26  Times  L.  R.  596,  3  B.  W.  C.  C.  418,  3  N. 
C.  C.  A.  225;  M'Innes  v.  Dunsmuir   [1908] 
S.  C.  1021,  45  Scot.  L.  R.  804,  1  B.  W.  C.  C. 
226;  Wicks  v.  Dowell  &  Co.  [1905]  2  K.  B. 
225,  74  L.  J.  K.  B.  N.  S.  572,  53  Week.  Rep. 
515,  92  L.  T.  N.  S.  677,  21  Times  L.  R.  487, 
2  Ann.  Cas.  732,  7  W.  C.    C.    14;    Hurle's 
Case,  217  Mass.  223,  ante,  279,  104  N.  E.  336, 
Ann.  Cas.  1915C,  919,  4  N.  C.  C.  A.  527. 


Ch.   J.,   delivered   the   opinion   of 
the  court: 

On  this  appeal  from  a  decree  made  under 
the  provisions  of  the  workmen's  compensa- 
tion act,  it  is  contended  by  the  dependent 
that  the  question  whether  the  findings  are 
supported  by  the  evidence  is  not  open.  By 
Stat.  1911,  chap.  751,  pt.  III.,  §  7, 
as  amended  by  Stat.  1912,  chap.  571,  § 
12,  the  arbitration  committee  is  required  to 
file  with  the  Industrial  Accident  Board  its 
decision,  "together  with  a  statement  of  the 
evidence  submitted  before  it,  its  findings  of 
fact,  rulings  of  law  and  any  other  matters 
pertinent  to  questions  arising  before  it." 
No  party  is  entitled  to  a  second  hearing  as 
matter  of  right  before  the  Industrial  Acci- 
dent Board  upon  any  question  of  fact.  Sec- 
tion 10  of  part  III.  It  seems  from  the 
record  and  the  course  of  the  argument  in 
this  court  that  no  evidence  was  received  by 
the  Industrial  Accident  Board,  but  that  its 


belongings,  see  annotation,  post,  322. 
L.R.A.1916A. 


'  hearing  was  confined  in  this  respect  to  the 
21 


322 


WORKMEN'S  COMPENSATION. 


matters  reported  by  the  arbitration  com- 
mittee. The  finding  and  decision  of  the  In- 
dustrial Accident  Board  are  not  explicit  in 
this  respect.  It  would  be  desirable  to  have 
the  fact  stated  definitely  in  order  that  oc- 
casion for  doubt  may  be  removed  in  future 
cases.  But  we  feel  warranted  in  making 
that  assumption  in  the  case  at  bar  for  the 
reasons  stated.  In  any  event,  it  is  an  as- 
sumption in  favor  of  the  appealing  party. 
It  must  be  assumed  that  the  arbitration 
committee  performed  its  duty  and  reported 
all  the  material  evidence.  The  procedure  in 
this  respect  differs  from  that  on  exceptions 
from  the  superior  court,  where,  if  the  suf- 
ficiency of  the  evidence  to  support  the  ver- 
dict or  finding  is  raised,  it  must  appear 
that  the  material  evidence  is  set  forth.  And 
the  procedure  also  differs  from  that  on  find- 
ings and  decision  of  the  Industrial  Accident 
Board.  Stickley's  Case,  219  Mass.  513,  107 
N.  E.  350.  The  positive  duty  resting  on  the 
arbitration  committee  to  report  all  material 
evidence  supplies  the  absence  of  the  express 
statement  required  in  a  bill  of  exceptions. 
It  follows  that  it  is  open  to  the  insurer  to 
argue  that  the  findings  are  not  supported 
by  the  evidence  reported. 

The  deceased  employee  was  a  cook  upon 
a  lighter,  where  his  employment  required 
him  to  live  and  be  a  large  part  of  the  time. 
The  craft  began  to  sink  and  he  then  made 
several  trips  to  and  from  the  deck  in  an 
attempt  to  save  some  of  his  clothes  and  a 
surveying  instrument.  With  these  he 
hastened  to  the  pier  of  a  dock,  where  he 
died  soon  after.  He  had  suffered  from 
valvular  disease  of  the  heart,  and  his  ex- 
ertions in  the  effort  to  save  his  belongings 
and  the  excitement  incident  to  the  loss  of 
the  vessel  so  aggravated  the  heart  weak- 
ness as  to  cause  his  death.  The  perils  of 
the  sea  were  risks  arising  out  of  and  in  the 
course  of  the  employment  of  the  deceased. 
The  sinking  of  the  boat  obviously  was  one  of 
these  perils.  It  is  impossible  to  say  as 
matter  of  law  that  it  is  not  one  of  the  in- 
stincts of  humanity  to  try  to  save  from  a 
sinking  vessel  all  of  one's  possessions  that 
reasonably  can  be  secured.  The  deceased 
perhaps  exerted  himself  too  much  for  this 
purpose,  although  it  would  be  difficult  on 
the  evidence  to  determine  to  how  great  an 
extent  the  fatal  result  was  due  to  that  cause 


rather  than  to  the  excitement  of  the  oc- 
casion. Under  these  circumstances  the  calm 
and  wisdom  of  quiet  and  safety  cannot  be 
expected.  Much  must  be  excused  to  the 
surrounding  commotion.  The  deceased  did 
not  abandon  the  service  of  his  employer  and 
embark  on  a  venture  of  his  own  when  he 
tried  to  save  his  clothing.  It  was  an  im- 
plied term  of  such  service  as  this  that  the 
employee  might  use  reasonable  effort  to- 
this  end  in  an  exigency  like  that  which 
arose.  This  is  not  an  instance  where  the 
discipline  of  a  ship  was  violated  or  a  highet 
duty  neglected.  It  was  in  the  course  of  hi& 
employment  to  live  upon  the  lighter.  What- 
ever it  was  reasonable  for  anyone  to  do 
leaving  a  sinking  vessel,  which  was  his- 
temporary  home,  was  within  the  scope  of 
his  employment.  The  standard  to  be  ap- 
plied is  not  that  which  now,  in  the  light  of 
all  that  has  happened,  is  seen  to  have  been 
directly  within  the  line  of  labor  helpful  to 
the  master,  but  that  which  the  ordinary 
man,  required  to  act  in  such  an  emergency, 
might  do  while  actuated  with  a  purpose  to 
do  his  duty.  The  cases  relied  upon  by  the 
insurer,  collected  in  25  Harvard  L.  Rev.  420, 
42],  are  distinguishable.  They  all  are 
instances  of  conduct  by  the  employee  quite 
outside  the  scope  of  the  employment,  resting 
upon  intelligent  abandonment  for  the 
moment  of  duty  to  the  employer.  In  the 
case  at  bar  there  may  be  found  to  be  ap- 
parent to  the  rational  mind  a  causal  con- 
nection between  the  employment  and  the 
thing  done  by  the  employee  at  the  time  of 
the  sinking  of  the  lighter.  McNichoPs- 
Case,  215  Mass.  497,  ante,  306,  102  N.  E. 
697,  4  N.  C.  C  A.  522. 

Acceleration  of  previously  existing  heart 
disease  to  a  mortal  end  sooner  than  other- 
wise it  would  have  come  is  an  injury  within 
the  meaning  of  the  workmen's  compensation 
act.  Wiemert  v.  Boston  Elev.  R.  Co.  216- 
Mass.  598,  104  N.  E.  360;  Clover,  C.  &  Co. 
v.  Hughes  [1910]  A.  C.  242,  79  L.  J.  K.  B.. 
N.  S.  470,  102  L.  T.  N.  S.  340,  26  Times  L. 
R.  359,  54  Sol.  Jo.  375,  47  Scot.  L.  R.  885,  3 
B.  W.  C.  C.  275.  The  finding  of  the  Indus- 
trial Accident  Board  that  the  death  of  the 
employee  arose  out  of  and  in  the  course  of 
his  employment  was  warranted  by  the  evi- 
dence. 

Decree  affirmed. 


Annotation — Recovery  of  compensation  for  injuries  received  while  trying 
to  save  personal  belongings  from  loss. 


As  to  application  and  effect  of  work- 
men's  compensation   acts  generally,   see 


annotation,  ante,  23. 
There   appears    to 


be   no   other   case 


where  compensation  was  sought  for  in- 
L.R.A.1916A. 


juries  received  while  the  workman  was 
attempting  to  save  his  personal  effectsr 
but  the  decision  in  RE  BRIGHTMAK  finds 
support  in  a  number  of  decisions  in  which 
compensation  was  allowed  where  the  in- 


SAVING  PERSONAL  BELONGINGS. 


32$ 


juries  were  received  by  the  workman,  not 
in  performing  his  ordinary  work,  but 
where  he  was  acting  in  an  emergency. 
See  cases  cited  in  notes  20  et  seq.  on  p. 
56,  ante. 

In  Gonyea  v.  Canadian  P.  R.  Co. 
(1913)  7  B.  W.  C.  C.  (Sask.)  1041,  the 
supreme  court  of  Saskatchewan  held  that 
an  injury  to  a  workman  employed  by  a 
railroad  company  arose  out  of  his  em- 
ployment where  he  was  injured  while  on 
the  defendant's  premises  by  their  per- 
mission, for  the  purpose  of  procuring 
some  of  his  personal  belongings,  which 
had  been  brought  by  one  of  the  employ- 
er's trains  from  his  last  place  of  work. 
This  decision,  although  turning  solely  up- 
on the  fact  that  the  workman  was  acting 
with  the  permission  of  his  employer,  sup- 
ports RE  BRIGHTMAN  in  that  compensa- 
tion was  allowed,  although  the  injury  was 


received  while  the  workman  was  engaged 
solely  in  looking  after  his  own  personal- 
belongings. 

The  effect  of  the  decision  in  Whitfield' 
v.  Lambert  (1915)  112  L.  T.  N.  S.  (Eng.) 
803,  [1915]  W.  C.  &  Ins.  Rep.  48,  8  B. 
W.  C.  C.  91,  seems  to  be  to  the  contrary. 
Here  a  workman  employed  by  a  farmer 
was  injured  while  using  the  farmer's 
horse  and  cart  to  fetch  his  box  from  the 
station,  and  it  was  held  that  he  was  not 
entitled  to  compensation,  although  it  was 
a  term  of  the  contract  of  employment 
that  he  was  to  have  a  horse  and  cart  for 
that  purpose.  Swinfen  Eady,  L.  J.,  said : 
"Applicant  was  merely  using  the  re- 
spondent's horse  and  cart  with  leave  and 
license,  as  it  was  agreed  that  he  was  at 
liberty  to  do.  He  was  going  on  his  own 
business,  and  not  on  the  farmer's  busi- 
ness." W.  M.  G. 


MICHIGAN    SUPREME    COURT. 

WILLIAM  McCOY 

v. 

MICHIGAN    SCREW    COMPANY,    Plff.    in 
Certiorari. 

(380  Mich.  454,  147  N.  W.  572.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  loss  of  eye  through 
infection. 

Loss  of  eye  through  infection  carried  to 
it  by  the  fingers  when  attempting  to  allay 
irritation  caused  by  steel  splinters  which 
lodged  in  it  from  a  machine  on  which  an  em- 
ployee was  working  is  not  an  injury  aris- 
ing out  of  or  in  the  course  of  the  employ- 
ment, within  the  meaning  of  the  workmen's 
compensation  act. 
For  other  cases,  see  Master  and  Servant, 

II.  a,  1,  in  Dig.  1-52  N.  8. 

(June  1,  1914.) 

/"CERTIORARI  to  the  Industrial  Accident 
\J  Board  to  review  an  award  to  claimant, 
by  an  arbitration  committee,  of  damages  for 
the  loss  of  an  eye,  under  the  workmen's 
compensation  act.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Stevens  T.  Mason,  for  plaintiff  in 
certiorari : 

Claimant  is  not  entitled  to  compensation 
if  something  other  than  the  injury  was  the 
proximate  cause  of  the  loss  of  his  eye. 

1  Cyc.  274;  Thomp.  Neg.  §  54;  The  Clara, 

Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  recovery  of  compensation  for   loss 
of  eye   through   external   infection,   see   an- 
notation, post,  320. 
L.R.A.1916A. 


5  C.  C.  A.  390,  14  U.  S.  App.  346,  55  Fed. 
1021 ;  Haile  v.  Texas  &  P.  R.  Co.  23  L.R.A. 
774,  9  C.  C.  A.  134,  23  U.  S.  App.  80,  60 
Fed.  557 ;  Chesapeake  &  O.  R.  Co.  v.  Heath, 
103  Va.  64,  48  S.  E.  508;  Louisville  &  N.  R. 
!  Co.  v.  Scalf,  33  Ky.  L.  Rep.  721,  26  L.R.A. 
(N.S.)  263,  110  S.  W.  862;  Ruegg,  Work- 
men's Compensation,  323,  340 ;  Commercial 
Travelers'  Mut.  Acci.  Asso.  v.  Fulton,  24  C_ 
C.  A.  654,  45  U.  S.  App.  578,  79  Fed.  423  r 
Hubbard  v.  Travelers'  Ins.  Co.  98  Fed.  932;: 
New  Amsterdam  Casualty  Co.  v.  Shields,  85> 
C.  C.  A.  122,  155  Fed.  54;  Illinois  Com- 
mercial Men's  Asso.  v.  Parks,  103  C.  C.  A. 
286,  179  Fed.  794;  Binder  v.  National  Ma- 
sonic Acci.  Asso.  127  Iowa,  25,  102  N.  W. 
190;  White  v.  Standard  Life  &  Acci.  Ins.  Co. 
95  Minn.  77,  103  N.  W.  735,  884,  5  Ann.. 
Gas.  83;  Maryland  Casualty  Co.  v.  Glass,. 
29  Tex.  Civ.  App.  159,  67  S.  W.  1062 ;  Street- 
er  v.  Western  Union  Mut.  Life  &  Acci.  Soc. 
65  Mich.  199,  8  Am.  St.  Rep.  882,  31  N.  W. 
779;  Scheffer  v.  Washington  City,  V.  M.  &. 
G.  S.  R.  Co.  105  U.  S.  249,  26  L.  ed.  1070; 
Dunham  v.  Clare,  4  W.  C.  C.  102  [1902]  2 
K.  B.  293,  71  L.  J.  K.  B.  N.  S.  683,  66  J.  P. 
612,  50  Week.  Rep.  596,  86  L.  T.  N.  S.  751, 
18  Times  L.  R.  645;  Ystradowen  Colliery 
Co.  v.  Griffiths  [1909]  2  K.  B.  533,  78  L.  J. 
K.  B.  N.  S.  1044,  100  L.  T.  N.  S.  869,  25 
Times  L.  R.  622;  Beauchamp  v.  Saginaw 
Min.  Co.  50  Mich.  163,  45  Am.  Rep.  30,  15 
N.  W.  65;  McCarmel  v.  Howell,  36  111.  App. 
68;  Crane  Elevator  Co.  v.  Lippert,  11  C. 
C.  A.  521,  24  U.  S.  App.  176,  63  Fed.  942; 
Lalone  v.  United  States,  164  U.  S.  255,  41 
L.  ed.  425,  17  Sup.  Ct.  Rep.  74;  Baltimore 
City  Pass.  R.  Co.  v.  Kemp,  61  Md.  619,  48 
Am.  Rep.  134,  3  Am.  Neg.  Cas.  667;  Terre 
Haute  &  I.  R.  Co.  v.  Buck,  96  Ind.  346,  49^ 


324 


WORKMEN'S  COMPENSATION. 


Am.  Rep.  168,  3  Am.  Neg.  Cas.  148;  Travel- 
ers' Ins.  Co.  v.  Melick,  27  L.R.A.  629,  121 
C.  C.  A.  544,  27  U.  S.  App.  547,  65  Fed. 
178;  Craske  v.  Wigan  [1909]  2  K.  B.  635, 
78  L.  J.  K.  B.  N.  S.  994,  101  L.  T.  N.  S. 
6,  25  Times  L.  R.  632,  53  Sol.  Jo.  560,  2 
B.  W.  C.  C.  35;  Wolsey  v.  Pethick  Bros.  1 
B.  W.  C.  C.  411;  Boyd,  Workmen's  Compen- 
sation, §  559;  Mitchell  v.  Glamorgan  Coal 
Co.  23  Times  L.  R.  588;  Gibley  v.  Great 
Western  R.  Co.  3  B.  W.  C.  C.  135,  102  L.  T. 
N.  S.  202 ;  Barnabas  v.  Bersham  Colliery  Co. 
3  B.  W.  C.  C.  216,  102  L.  T.  N.  S.  621; 
White  v.  Sheepwash,  3  B.  W.  C.  C.  382; 
Charles  v.  Walker,  2  B.  W.  C.  C.  5,  25  Times 
L.  R.  609. 

Messrs.  Person,  Shields,  &  Silsbee,  for 
defendant  in  certiorari: 

Claimant  was  entitled  to  the  compensa- 
tion awarded  by  the  arbitration  committee. 

Baldwin,  Personal  Injuries,  §  167;  Wil- 
kinson v.  Detroit  Steel  &  Spring  Works,  73 
Mich.  409,  41  N.  W.  490;  Shumway  v.  Wai- 
worth  &  N.  Mfg.  Co.  98  Mich.  415,  57  N. 
W.  251,  15  Am.  Neg.  Cas.  10;  Jeffersonyille, 
M.  &  I.  R.  Co.  v.  Riley,  39  Ind.  568; 
Schwingschlegal  v.  Monroe,  113  Mich.  685, 
72  N.  W.  7 ;  Reed  v.  Detroit,  108  Mich.  224, 
65  N.  W.  967;  Zibbell  v.  Grand  Rapids,  129 
Mich.  659,  89  N.  W.  563;  Hall  v.  Cadillac, 
114  Mich.  99,  72  N.  W.  33;  Rawlings  v. 
Clyde  Plank  &  Macadamized  Road  Co.  158 
Mich.  143,  122  N.  W.  504;  Beauerle  v. 
Michigan  C.  R.  Co.  152  Mich.  345,  116  N.  W. 
424;  1  Thomp.  Neg.  §  149;  Young  v.  Acci- 
dent Ins.  Co.  Montreal  L.  Rep.  6  S.  C.  3; 
Hatchell  v.  Kimbrough,  49  N.  C.  (4  Jones, 
L.)  163;  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Wood,  113  Ind.  544,  14  N.  E.  572,  16  N.  E. 
197,  3  Am.  Neg.  Cas.  197;  Baltimore  City 
Pass.  R.  Co.  v.  Kemp,  61  Md.  74,  3  Am. 
Neg.  Cas.  655;  Stewart  v.  Ripon,  38  Wis. 
584 ;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Falvey, 
104  Ind.  409,  3  N.  E.  389,  4  N.  E.  908 ;  Dick- 
son  v.  Hollister,  123  Pa.  421,  10  Am.  St. 
Rep.  533,  16  Atl.  484;  Houston  &  T.  C.  R. 
Co.  v.  Leslie,  57  Tex.  83,  6  Am.  Neg.  Cas. 
492;  Beauchamp  v.  Saginaw  Min.  Co.  50 
Mich.  163,  45  Am.  Rep.  30,  15  N.  W.  65; 
Louisville  &  N.  R.  Co.  v.  Northington,  91 
Tenn.  56,  16  L.R.A.  268,  17  S.  W.  880;  Dun- 
ham v.  Clare,  4  W.  C.  C.  102  [1902]  2  K.  B. 
293,  71  L.  J.  K.  B.  N.  S.  683,  66  J.  P.  612, 
50  Week.  Rep.  596,  86  L.  T.  N.  S.  751,  18 
Times  L.  R.  645. 

Kuhn,  J.,  delivered  the  opinion  of  the 
court : 

The  claimant,  William  McCoy,  was  em- 
ployed by  the  contestant  and  appellant  as 
an  operator  on  a  lathe  machine.  On  Febru- 
ary 1,  1913,  several  small  pieces  of  steel 
from  the  machine  on  which  he  was  working 
lodged  in  his  eye.  This,  it  is  claimed, 
L.R.A. 19]  6A. 


caused  an  irritation  and  caused  him  to  rub 
his  eye.  At  the  time,  claimant  was  being 
treated  by  Dr.  A.  M.  Campbell  for  gonor- 
rhea. On  February  7th  he  went  to  Dr. 
Cochrane,  who  removed  four  pieces  of  steel 
from  the  eye.  The  next  day  the  doctor  re- 
moved another  piece  of-  steel  and  discovered 
that  the  eye  had  become  infected  with  gonor- 
rhea. He  was  then  sent  to  a  hospital  and 
subsequently  lost  the  sight  of  the  eye.  The 
Industrial  Accident  Board  affirmed  an  award 
made  claimant  by  an  arbitration  committee 
of  $6.49  per  week  for  100  weeks. 

It  is  the  claim  of  contestant  and  appel- 
lant that  the  loss  of  the  eye  was  not  the  re- 
sult of  a  personal  injury  arising  out  of  and 
in  the  course  of  claimant's  employment,  but 
was  the  direct  result  of  a  disease  unconnect- 
ed in  any  way  with  his  employment.  At 
the  hearing  before  the  Industrial  Accident 
Board,  four  physicians  were  sworn,  who  tes- 
tified as  to  the  effect  upon  the  eye  of  gon- 
orrheal  infection. 

Claimant  contends  that  the  germs  would 
not  have  entered  the  eye  had  not  the  steel 
caused  "(a)  an  inclination  to  rub — the  in- 
citing cause;  (b)  inflamed  condition  which 
made  the  eye  susceptible  to  the  entry  of  the 
germs,  as  in  the  case  of  blood  poison  and 
erysipelas." 

A  careful  reading  of  the  testimony  of  the 
physicians  shows  that  the  infection  can  easi- 
ly be  caused  to  a  normal  eye  by  rubbing  the 
eye  with  a  hand  infected  with  the  gonor- 
rheal  germ. 

Dr.  Bret  Nottingham  testified: 

Mr.  Mason:  And  will  you  say  as  an  ex- 
pert how  gonorrhea  can  be  communicated 
to  the  eye?  Is  it  by  germ  or  otherwise? 

A.  Yes;  it  is  a  contagious  disease,  of 
course,  produced  by  this  germ,  and  a  per- 
son, in  caring  for  themselves  as  they  have 
to,  get  some  of  this  pus  on  their  finger  con- 
taining the  germs,  and  of  course,  the  eye 
being  irritable,  would  rub  the  eye  with  the 
finger  containing  this  pus. 

Mr.  Mason:  No  doubt  that  infection  of 
the  eye  was  caused  by  the  entering  of  gon- 
orrhea germs.  Could  that  infection  occur  if 
there  was  no  injury  in  the  eye? 

A.  Yes. 

Mr.  Mason:  Therefore,  if  a  perfectly  nor- 
mal eye  will  be  rubbed  by  a  hand  infected 
with  the  germ,  it  will  infect  the  eye. 

A.  It  might  be  very  easily  infected;  a 
normal  eye  can  be  infected  in  this  same 
manner. 

Mr.  Mason :  Suppose  this  boy  had  not  had 
any  injury  to  his  eye,  and  had  rubbed  his 
eye;  would  it  be  possible  that  he  could  have 
lost  his  eye? 

A.  Yes;  the  same  result  might  have  been 
obtained. 


McCOY  v.  MICHIGAN  SCREW  CO. 


325 


Dr.  Cushman  testified:  "Gonorrhea  is 
one  of  the  most  common  conditions  that 
there  is,  perhaps,  and  it  is  an  admitted 
fact,  without  any  argument  upon  what  we 
are  supposed  to  know,  that  the  gonorrhea 
germ  will  attack  and  penetrate  the  un- 
affected covering  of  the  eye.  I  have  heard 
it  said  on  reasonably  good  authority  that 
it  is  perhaps  the  only  germ  that  will  attack 
an  uninjured  eye;  but  the  fact  of  there  hav- 
ing been  this  injury  to  the  eye  from  the 
steel,  without  any  question,  in  my  mind,  has 
lowered  the  resistance  of  the  eye,  that  is, 
weakened  it,  and  made  it  less  resistant  to 
the  infection.  With  the  inflammation,  it  was 
much  more  probable  that  the  eye  become  af- 
fected. Now,  if  the  infection  of  gonorrhea 
was  easier  transmitted  to  the  eye,  there 
would  be  probably  about  50  per  cent  of  us 
running  around  blind.  That  is,  the  gonor- 
rhea is  common,  and  you  don't  see  many 
blind.  I  have  heard  that  90  per  cent  of 
the  men  in  a  certain  town  either  have  or 
have  had  gonorrhea,  and  90  per  cent  of  the 
men  haven't  got  bad  eyes,  and  probably  have 
been  careless  about  their  fingers.  The 
presence  of  an  injury  to  the  eye  makes  it 
far  more  probable  that  the  eye  will  become 
diseased." 

Dr.  Cochrane  testified: 

Mr.  Mason :  Dr.  Cochrane,  did  you  ex- 
amine this  William  McCoy;  on  what  date? 

A.  February  7th. 

Mr.  Mason :  He  came  to  you  for  what 
trouble? 

A.  He  complained  of  steel  in  his  eye. 

Mr.  Mason:  Did  you  take  the  foreign 
bodies  ? 

A.  Yes. 

Mr.  Mason:  Where  were  they  in  the  eye? 

A.  On  the  upper  lid  on  the  under  side. 

Mr.  Mason :  Were  they  in  a  place  where 
they  would  have  been  apt  to  give  very  seri- 
ous injury  to  the  eye? 

A.  Not  serious  injury;  they  would  pro- 
duce irritation. 

Mr.  Mason :  Does  the  present  loss  of  the 
eye  result  from  these  cinders  having  been 
in  or  from  another  cause? 

A.  The  direct  cause  is  from  the  gonor- 
rhea infection. 

Mr.  Mason :  Therefore  the  loss  of  the  eye 
is  the  direct  result  of  disease,  and  not  of  ac- 
cident. 

A.  The  immediate  cause  is  the  disease. 

Mr.  Mason:  In  other  words,  what  we  call 
the  resulting  cause  is  the  disease. 

A.  The  immediate  or  direct  cause. 

Mr.  Mason:  How  did  that  gonorrhea  get 
into  his  eye? 

A.  Probably   from    rubbing   with   his   fin- 
gers. 
L.R.A.1916A. 


Mr.  Mason:  He  had  gonorrhea  before 
that? 

A.  I  understand  so. 

Mr.  Mason:  At  the  time  you  examined 
him  did  he  have  gonorrhea? 

A.  I  understand  so. 

Mr.  Reaves:  You  say,  Doctor,  that  that 
was  the  approximate  cause  of  the  loss  of 
his  eye — the  immediate  cause;  what  would 
you  say  if  he  had  not  have  had  the  steel 
in  his  eye? 

A.  If  he  had  not  had  the  steel  in  his  eye, 
he  might  not  have  rubbed  his  eye,  at  least 
not  as  vigorously  as  he  did,  and  so  he  might 
not  have  infected  the  eye. 

Dr.  Campbell  testified: 

Mr.  Atkins:  How  much  more  chance 
would  there  be  for  his  losing  his  eye  after 
having  the  piece  of  steel  in  there,  and  the 
inflammation  with  it — how  much  more 
chance  would  there  be  to  lose  the  eye? 

A.  Just  as  soon  as  the  infection  gets  in 
there  I  don't  think  it  would  make  a  great 
deal  of  difference.  You  are  just  as  liable 
to  lose  the  eye  as  soon  as  your  infection  gets 
there,  whether  you  had  anything  in  there  or 
not.  The  point  is  here,  your  steel  would  be 
an  inciting  cause,  and  get  infection  on  that 
account;  but,  once  you  get  the  infection, 
you  are  liable  to  lose  the  eye  one  way  or 
the  other.  The  point  is  here,  there  is  an 
inciting  cause  from  rubbing  the  eye;  the 
effect  of  the  steel  being  there,  a  man  would 
be  more  liable  to  get  infection  of  the  eye, 
but,  once  your  infection  is  in  there,  you  will 
lose  the  eye  from  the  gonorrhea  infection. 
It  does  not  make  any  difference  how  it  gets 
in  there,  you  will  lose  the  sight  partially  or 
complete. 

The  burden  of  furnishing  evidence  from 
which  the  inference  can  be  legitimately 
drawn  that  the  injury  arose  "out  of  and  in 
the  course  of  his  employment"  rests  upon 
the  claimant.  Bryant  v.  Fissell,  84  N.  J. 
L.  72,  86  Atl.  458,  3  N.  C.  C.  A.  585 ;  Ruegg 
on  Workmen's  Compensation,  p.  343.  says: 
"If  an  inference  favorable  to  the  applicant 
can  only  be  arrived  at  by  a  guess,  the  ap- 
plicant fails.  The  same  thing  happens 
where  two  or  more  inferences  equally  con- 
sistent with  the  facts  arise  from  them." 

Boyd  on  Workmen's  Compensation,  §  559, 
says:  "The  workman  carries  the  burden  of 
proving  that  his  injury  was  caused  by  the 
accident,  and,  where  he  fails  to  do  so,  and 
where  the  evidence  as  to  the  cause  of  the  in- 
jury is  equally  consistent  with  an  accident, 
and  with  no  accident,  compensation  may 
not  be  awarded  him." 

In  the  instant  case  it  is  not  reasonable 
to  say  that  he  would  not  have  rubbed  his  eye 
if  the  steel  had  not  lodged  there.  He  might 
not  have  rubbed  his  eye,  it  is  true ;  but  it  is 


326 


WORKMEN'S  COMPENSATION. 


just  as  reasonable  to  suppose  that  he  might  j  fection  caused  by  the  gonorrhea,  which   it 
have  had  occasion  to  rub  his  eye  without  j  cannot  be  claimed  is  a  risk  incident  to  the 


this  particular  inciting  cause.  By  the  medi- 
cal testimony  it  conclusively  appears  that 
the  infection  could  have  taken  place  if  the 
steel  had  not  been  there.  It  must  be  said, 
from  this  record,  that  the  loss  of  the  eye 
was  directly  and  immediately  due  to  the  in- 


employment.  We  are  of  the  opinion  that 
the  facts  are  not  capable  of  supporting  the 
inference  that  the  injury  arose  out  of  and 
in  the  course  of  the  employment. 

The   decision   of   the  Industrial   Accident 
Board  is  reversed,  with  costs  to  appellant. 


Annotation — Recovery  of  compensation  for  loss  of  eye  through  infection. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

Compensation  is  recoverable  only  for 
injuries  or  incapacity  "arising  out  of  and 
in  the  course  of"  the  employment;  con- 
sequently, if  the  injury  to  an  eye  is  the 
result  of  an  infection  from  a  source  not 
in  any  way  connected  with  the  employ- 
ment, compensation  is  properly  denied. 

McCoT  Y-  MICHIGAN  SCREW  Co.  is  a 
good  example  of  this  character  of  cases. 
The  injury  to  the  eye  was  comparatively 
slight,  and  the  resulting  incapacity  would 
also  undoubtedly  have  been  slight  but 
for  the  fact  that  germs  of  a  disease  from 
which  the  workman  was  suffering  at  the 
time  of  the  injury  were  carried  to  the 
eye  by  the  workman's  hand. 

The  English  case  of  Bellamy  v.  Hum- 
phries [1913]  W.  C.  &  Ins.  Eep.  (Eng.) 
169,  6  B.  W.  C.  C.  53,  is  to  the  same 
effect.  Here  it  was  held  that  where  a 
microbe  from  some  source  not  connected 
with  the  employment  enters  the  eye  and 
sets  up  inflammation,  the  arbitrator  is 
justified  in  holding  that  the  employers 
are  not  liable  for  compensation  for  the 
resulting  incapacity,  although  the  work- 
man had  previously  gotten  harmless  dust 
into  his  eye,  and  by  rubbing  it  had  caused 
an  abrasion,  rendering  the  action  of  the 
microbe  more  serious. 

An  award  of  compensation  was  set 
aside  in  Voelz  v.  Industrial  Commission 
(1915)  —  Wis.  — ,  152  N.  W.  830,  where 
a  plumber,  while  lying  on  his  back,  at 
work  on  the  hot  water  cock  of  a  wash 
basin  in  a  private  residence,  was  struck 
in  the  eye  by  a  "something"  which  caused 
acute  pain  and  impelled  him  to  rub  his 
eye,  which  became  inflamed,  and  gon- 
orrheal  infection  followed,  resulting  in 
the  loss  of  the  sight  of  the  eye.  It  was 
satisfactorily  shown  that  the  workman 
was  not  suffering  from  any  gonorrheal 
infection  at  the  time  of  the  injury,  but 
the  award  was  set  aside  as  being  based  on 
mere  conjecture  or  surmise,  since  the 
Commission  said  in  their  finding  that  the 
substance  which  fell  in  the  eye  might 
have  been  infected,  or  "with  the  eye  in- 
flamed it  might  become  infected  by  rub- 
L.R.A.1916A. 


bing  it  with  an  infected  cloth,  or  wash- 
ing it  in  infected  water,  or  in  other 
ways."  The  court  called  especial  atten- 
tion to  the  fact  that  the  workman  was 
not  working  on  the  waste  pipe  or  any 
pipe  which  takes  water  away  from  the 
wash  bowl,  but  on  the  cock  which  sup- 
plied clean  water  to  the  bowl.  The  court, 
however,  went  on  to  say:  "If  the  Com- 
mission had  found  as  a  fact  that  the  in- 
fection came  from  the  substance  that 
dropped  in  the  eye,  it  might  be  difficult 
to  say  that  there  was  no  evidence  to  sup- 
port the  finding;  but  they  did  not  so 
find;  on  the  contrary,  they  reached  the 
conclusion  which  seems  to  us  eminently 
reasonable  and  logical  that  it  might  have 
come  from  this  source,  and  might  also 
have  come  from  a  number  of  outside 
sources." 

If  the  injury  to  the  eye,  however,  is 
the  direct  result  of  foreign  particles 
which  get  into  the  eye  while  the  .work- 
man is  engaged  in  his  regular  duties, 
then  such  loss  or  injury  may  be  said  to 
be  an  accident  for  which  compensation 
is  recoverable,  although  the  injury  may 
have  been  aggravated  by  the  workman 
rubbing  his  eye. 

Thus,  a  workman  suffered  injury  by 
accident  where  bran  dust  containing  grit 
got  into  his  eyes,  and  by  rubbing  them 
an  abrasion  was  caused  which  necessitat- 
ed the  removal  of  one  eye,  and  affected 
the  sight  of  the  other  eye.  Adams  v. 
Thompson  (1911)  5  B.  W.  C.  C.  (Eng.) 
19. 

It  has  been  held  by  the  House  of 
Lords,  sustaining  the  court  of  appeal, 
that  a  workman  whose  eye  becomes  in- 
fected with  anthrax  while  engaged  in 
handling  wool  suffers  an  accident  within 
the  meaning  of  the  compensation  act.. 
Brintons  v.  Turvey  [1905]  A.  C.  (Eng.) 
230,  74  L.  J.  K.  B.  N.  S.  475,  53  Week. 
Rep.  641,  92  L.  T.  N.  S.  578,  21  Times 
L.  R.  244,  2  Ann.  Cas.  137,  affirming 
[1904]  1  K.  B.  (Eng.)  328,  73  L.  J.  K.  B. 
N.  S.  158,  68  J.  P.  193,  52  Week.  Rep. 
195,  89  L.  T.  N.  S.  660,  20  Times  L.  R. 
129.  This  decision  was  handed  down  be- 
fore the  act  was  extended  to  embrace  in- 
dustrial diseases,  and  from  the  language 


LOSS  OF  EYE  THROUGH  INFECTION. 


327 


used  by  the  judges  delivering  judgment 
it  appears  to  be  a  very  extreme  case, 
and  might  be  cited  as  a  precedent  for 
awarding  compensation  in  any  case  of 
the  contracting  of  an  industrial  disease. 
It  would  seem  that  the  decision  could 
only  be  explained  upon  the  theory  that 
the  learned  judges  believed  that  the 


bacillus  of  anthrax  was  something  so 
tangible  that  the  impact  of  such  a  bacil- 
lus with  a  portion  of  the  human  body 
could  be  compared  with  the  impact  of 
some  material  object,  such  as  sand  or  a 
particle  of  steel.  This  decision  is  dis- 
cussed at  length  in  the  annotation,  ante, 


37. 


W.  M.  G. 


WISCONSIN  SUPREME  COURT. 

CITY  OF  MILWAUKEE,  Appt., 

v. 

MINNIE   ALTHOFF,   by    Guardian   et   al., 
Respts. 

(156  Wis.   68,   145  N.  W.  238.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  injury  while  pro- 
ceeding to  place  of  employment. 

An  injury  to  a  city  employee  who,  after 
reporting  according  to  custom  for  instruc- 
tion as  to  where  he  is  to  work  during  the 
day,  falls  on  the  sidewalk  while  on  his  way 
toward  such  place,  grows  out  of  and  is  in- 
cidental to  his  employment  within  the  mean- 
ing of  a  workmen's  compensation  act,  al- 
though it  occurs  before  the  hours  when  his 
regular  duties  for  the  day  begin. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(February   3,    1914.) 

APPEAL  by  defendant  from  a  judgment 
of  the  Circuit  Court  for  Dane  County 
affirming  an  award  of  the  Industrial  Com- 
mission, under  the  workmen's  compensation 
act,  in  favor  of  plaintiff  Althoff  for  the 
death  of  her  father.  Affirmed. 

Statement  by  Barnes,  J. : 

The  appeal  is  from  a  judgment  affirming 
an  award  of  $2,138.11,  made  in  favor  of 
Minnie  Althoff  by  the  Industrial  Commis- 
sion under  the  workmen's  compensation  act, 
against  the  city  of  Milwaukee,  on  account  of 
the  death  of  William  A.  Althoff,  the  father 
of  said  Minnie  Althoff.  The  deceased  was 
employed  by  the  city  at  an  agreed  compen- 
sation of  $2  per  day.  His  hours  of  labor 
were  fixed  at  eight  hours  a  day  by  an  ordi- 
nance of  the  city,  and  he  began  work  at  8 
o'clock  in  the  morning  and  finished  at  5  in 
the  afternoon.  He  was  required  to  report 
to  his  foreman  at  7:30  o'clock  each  morning 
to  receive  instructions  as  to  where  he  was 
to  work  during  the  day,  so  that  he  might 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As   to   recovery   of   compensation   for   in- 
juries while  going  to  and  from   work,  see 
annotation,  post,  331. 
L.R.A.1916A 


reach  his  place  of  employment  at  8  o'clock. 
He  reported,  according  to  custom,  on  the 
morning  of  May  3,  1912,  and,  after  receiv- 
ing instructions  as  to  where  he  was  to 
work,  proceeded  toward  the  place.  While 
on  his  way  he  fell  on  a  sidewalk  and  injured 
his  knee.  He  died  on  September  21,  1912, 
and  it  was  found  on  sufficient  evidence  that 
his  death  was  due  to  the  injury  which  he 
received  when  he  fell. 

Messrs.  Daniel  \V.  Hoan  and  William 
H.  Timlin,  Jr.,  for  appellant: 

A  party  is  not  entitled  to  compensation 
under  the  compensation  act  when  he  is  in- 
jured, not  in  working,  but  in  walking  along 
the  street,  going  to  a  place  at  which  he  is 
to  do  some  work,  the  injury  being  caused 
by  an  alleged  defect. 

Morrison  v.  Eau  Claire,  115  Wis.  538,  95 
Am.  St.  Rep.  955,  92  N.  W.  280. 

When  an  employee  reports  at  7:30  A.  M., 
for  the  purpose  of  ascertaining  where  he 
shall  work  that  day,  and  his  work  does  not 
commence  until  8  o'clock,  no  matter  when 
he  reaches  his  work, — such  employee  is 
not,  when  going  to  such  place  of  work, 
and  walking  upon  the  streets,  injured  by 
reason  of  an  accident  arising  out  of  and 
incidental  to  his  employment. 

26  Cyc.  969;  Walters  v.  Stavele  Coal  & 
I.  Co.  105  L.  T.  N.  S.  54,  55  Sol.  Jo.  579,  4 

B.  W.  C.  C.  303;  Anderson  v.  Fife  Coal  Co. 
[1010]  S.  C.  8,  47  Scot.  L.  R.  5,  3  B.  W.  C. 

C.  539 ;  Perry  v.  Anglo-American  Decorating 
Co.  3  B.  W.  C.  C.  310;  Kane    v.    Merry    & 
Cunninghame  [1911]   S.  C.  533,  48  Scot.  L. 
R.  430,  4  B.  W.  C.  C.    379;    Whitehead    v. 
Reader  [1901]  2  K.  B.  48,  70  L.  J.  K.  B.  N.> 
S.  546,  65  J.  P.  403,  49  Week.  Rep.  562,  84 
L.  T.  N.  S.  514,  17  Times  L.  R.  387,  3  W. 
C.  C.  40;  Kerr    v.    William    Baird    &    Co. 
[1911]   S.  C.  701,  48  Scot.  L.  R.  646,  4  B. 
W.  C.  C.  397;  McDaid  v.  Steel  [1911]  S.  C. 
859,  48  Scot.  L.  R.  765,  4  B.  W.  C.  C.  412; 
Traynor  v.   Robert  Addie  &  Sons,  48  Scot. 
L.  R.  820,  4  B.  W.  C.    C.    357;    Barnes    v. 
Nunnery  Colliery  Co.  [1910]  W.  N.  248,  45 
L.  J.  N.  C.  757,  4  B.  W.  C.  C.  43;  Jenkin- 
son  v.  Harrison  A.  &  Co.  4  B.  W.  C.  C.  194 ; 
Lowe  v.  Pearson  [1899]   1  Q.  B.  261,  68  L. 
J.  Q.  B.  N.  S.  122,  47  Week.  Rep.  193,  79 
L.  T.  N.  S.  654,  15  Times  L.  R.  124,  1  W. 


328 


WORKMEN'S  COMPENSATION. 


C.  C.  5;  Conway  v.  Pumpherson  Oil  Co. 
[1911]  S.  C.  660/48  Scot.  L.  R.  632,  4  B. 
W.  C.  C.  392 ;  Harding  v.  Brynddu  Colliery 
Co.  [1911]  2  K.  B.  747,  80  L.  J.  K.  B.  N. 
S.  1052,  105  L.  T.  N.  S.  55,  27  Times  L.  R. 
500,  55  Sol.  Jo.  599,  4  B.  W.  C.  C.  269. 

Messrs.  W.  C.  Owen,  Attorney  General, 
and  Byron  H.  Stebbins,  Assistant  Attor- 
ney General,  for  respondent  Industrial  Com- 
mission : 

The  finding  of  the  Industrial  Commission 
that  August  Althoff  was  injured  "while  en- 
gaged in  performing  service  growing  out  of 
and  incidental  to  his  employment"  is  final 
and  conclusive. 

Northwestern  Iron  Co.  v.  Industrial  Com- 
mission, 154  Wis.  97,  post,  366,  142  N.  W. 
271,  Ann.  Cas.  1915B,  877 ;  State  ex  rel.  Mil- 
waukee Medical  College  v.  Chittenden,  127 
Wis.  468,  107  N.  W.  500;  Travelers'  Ins. 
Co.  v.  Hallauer,  131  Wis.  371,  111  N.  W. 
527;  State  ex  rel.  McManus  v.  Policemen's 
Pension  Fund,  138  Wis.  133,  20  L.R.A. 
(N.S.)  1175,  119  N.  W.  806;  Northwestern 
Union  Packet  Co.  v.  McCue,  17  Wall.  508, 
514,  21  L.  ed.  705,  707;  Wood,  Mast.  &  S.  § 
404. 

The  decision  of  the  Industrial  Commis- 
sion is  correct  on  the  undisputed  facts. 

Jesson  v.  Bath,  113  L.  T.  N.  S.  206,  4  W. 
C.  C.  9 ;  M'Neice  v.  Singer  Sewing  Mach.  Co. 
[1911]  S.  C.  13,  48  Scot.  L.  R.  15,  4  B.  W. 
C.  C.  351;  Pierce  v.  Provident  Clothing  & 
Supply  Co.  [1911]  1  K.  B.  997,  80  L.  J.  K. 
B.  N.  S.  831,  104  L.  T.  N.  S.  473,  27  Times 
L.  R.  299,  55  Sol.  Jo.  363,  4  B.  W.  C.  C.  242 ; 
Refuge  Assur.  Co.  v.  Millar,  49  Scot.  L.  R. 
67;  Nelson  v.  Belfast  Corp.  42  Ir.  Law 
Times,  223,  1  B.  W.  C.  C.  158. 

The  relation  of  master  and  servant  is  not 
limited  to  the  time  that  the  latter  is  actual- 
ly engaged  in  work,  but  includes  a  reason- 
able time  before  he  commences  and  after  he 
ceases  such  work. 

Ewald  v.  Chicago  &  N.  W.  Co.  70  Wis. 
420,  5  Am.  St.  Rep.  178,  36  N.  W.  12,  591; 
McGregor  v.  Auld,  83  Wis.  539,  53  N.  W. 
845;  Helmke  v.  Thilmany,  107  Wis.  216,  83 
N.  W.  360,  8  Am.  Neg.  Rep.  172;  Charron  v. 
Northwestern  Fuel  Co.  149  Wis.  240,  49 
L.R.A.(N.S.)  162,  134  N.  W.  1048,  Ann. 
Cas.  191 3C,  939;  Pool  v.  Chicago,  M.  &  St. 
P.  R.  Co.  53  Wis.  657,  11  N.  W.  15,  56  Wis. 
227,  14  N.  W.  46. 

The  relation  of  master  and  servant  exists 
when  the  servant  is  under  the  master's  con- 
trol a.nd  subject  to  his  orders. 

5  Labatt,  Mast.  &  S.  p.  5425;  26  Cyc. 
1088;  East  Line  &  R.  River  R.  Co.  v.  Scott, 
71  Tex.  703,  10  Am.  St.  Rep.  804,  10  S.  W. 
298;  Harvey  v.  Texas  &  P.  R.  Co.  92  C.  C. 
A.  237,  166  Fed.  385;  St.  Louis,  A.  &  T.  R. 
Co.  v.  Welch,  72  Tex.  298,  2  L.R.A.  839,  10 
S.  W.  529;  Broderick  v.  Detroit  Union  R. 
L.R.A.1916A. 


Station  &  Depot  Co.  56  Mich.  261,  56  Am. 
Rep.  382,  22  N.  W.  802 ;  Taylor  v.  George  W. 
Bush  &  Sons  Co.  12  L.R.A. (N.S.)  853,  and 
note,  6  Penn.  (Del.)  306,  66  Atl.  884; 
Powers  v.  Calcasieu  Sugar  Co.  48  La.  Ann. 
483,  19  So.  455;  Sharp  v.  Johnson  &  Co. 
[1905]  2  K.  B.  139,  74  L.  J.  K.  B.  N.  S.  567, 
53  Week.  Rep.  597,  92  L.  T.  N.  S.  675,  21 
Times  L.  R.  482;  Blovelt  v.  Sawyer  [1904] 
1  K.  B.  271,  73  L.  J.  K.  B.  N.  S.  155,  68  J. 
P.  110,  52  Week.  Rep.  503,  89  L.  T.  N.  S. 
658,  20  Times  L.  R.  105;  Hoskins  v.  Lan- 
caster, 26  Times  L.  R.  612,  3  B.  W.  C.  C. 
476;  Perry  v.  Anglo-American  Decorating 
Co.  3  B.  W.  C.  C.  310;  Fitzpatrick  v.  Hind- 
ley  Field  Colliery  Co.  3  W.  C.  C.  37,  4  W.  C. 
C.  7 ;  Lowry  v.  Sheffield  Coal  Co.  24  Times  L. 
R.  142,  1  B.  W.  C.  C.  1;  Riley  v.  William 
Holland  &  Sons  [1911]  1  K.  B.  1029,  80  L. 
J.  K.  B.  N.  S.  814,  104  L.  T.  N.  S.  371,  27 
Times  L.  R.  327,  4  B.  W.  C.  C.  155. 

Mr.  Max  P.  Kufalk  for  respondent  Alt- 
hoff. 

Barnes,  J.,  delivered  the  opinion  of  the 
court : 

The  appellant  contends  that  it  is  not 
liable  for  injuries  received  by  one  of  its  em- 
ployees while  on  his  way  to  work,  that  the 
relation  of  master  and  servant  did  not  exist 
when  deceased  was  injured,  and  that  if 
there  is  any  liability  on  the  part  of  the 
city,  it  arises  out  of  §  1339,  Stat. 

Section  2394 — 4,  Stat.  1911,  provides  for 
liability  for  compensation  "where,  at  the 
time  of  the  accident,  the  employee  is  per- 
forming service  growing  out  of  and  inci- 
dental to  his  employment."  The  material 
questions  in  the  case  are:  Did  the  relation 
of  master  and  servant  exist  when  the  acci- 
dent occurred?  And,  if  so,  was  Althoff  per- 
forming a  service  growing  out  of  and  inci- 
dental to  his  employment?  There  is  no 
dispute  on  the  evidence  pertaining  to  these 
questions,  and  they  involve  propositions  of 
law  rather  than  matters  of  fact. 

The  relation  of  master  and  servant  may 
extend  beyond  the  hours  the  servant  is 
actually  required  to  labor,  and  in  some  in- 
stances to  places  other  than  the  premises 
where  the  servant  is  employed.  Ewald  v. 
Chicago  &  N.  W.  R.  Co.  70  Wis.  420,  5  Am. 
St.  Rep.  178,  36  N.  W.  12,  591;  Helmke  v. 
Thilmany,  107  Wis  216,  221,  83  N.  W.  360, 
8  Am.  Neg.  Rep.  172 ;  Pool  v.  Chicago,  M.  & 
St.  P.  R.  Co.  53  Wis.  657,  11  N.  W.  15; 
Kunza  v.  Chicago  &  N.  W.  R.  Co.  140  Wis. 
440,  123  N.  W.  403. 

The  courts  very  generally  hold  that  the 
relation  of  master  and  servant  exists  when 
the  servant  is  under  the  master's  control 
and  subject  to  his  direction.  5  Labatt, 
Mast.  &  S.  5425,  §  1806 ;  Harvey  v.  Texas  & 
P.  R.  Co.  92  C.  C.  A.  237,  166  Fed.  385; 


MILWAUKEE  v.  ALTHOFF. 


329 


Taylor  v.  George  W.  Bush  &  Sons  Co.  6 
Penn.  (Del.)  306,  12  L.R.A.(N.S.)  853,  66 
Atl.  884;  St.  Louis,  A.  &  T.  R.  Co.  v.  Welch, 
72  Tex.  298,  2  L.R.A.  839,  10  S.  W.  529; 
Powers  v.  Calcasieu  Sugar  Co.  48  La.  Ann. 
483,  19  So.  455. 

Such  seems  to  be  the  holding  of  the  Eng- 
lish courts  under  a  substantially  similar 
provision  of  the  English  workmen's  compen- 
sation act.  Sharp  v.  Johnson  &  Co.  [1905] 
2  K.  B.  139,  74  L.  J.  K.  B.  N.  S.  566,  567, 
53  Week.  Rep.  597,  92  L.  T.  N.  S.  675,  21 
Times  L.  R.  482;  Blovelt  v.  Sawyer  [1904] 
1  K.  B.  271,  73  L.  J.  K.  B.  N.  S/155,  68  J. 
P.  110,  52  Week.  Rep.  503,  89  L.  T.  N.  S. 
658,  20  Times  L.  R.  105;  Hoskins  v.  Lan- 
caster, 26  Times  L.  R.  612,  3  B.  W.  C.  C. 
476;  Fitzpatrick  v.  Hindley  Field  Colliery 
Co.  3  W.  C.  C.  37;  Lowry  v.  Sheffield  Coal 
Co.  24  Times  L.  R.  142,  1  B.  W.  C.  C.  1; 
Riley  v.  William  Holland  &  Sons  [1911]  1 
K.  B.  1029,  80  L.  J.  K.  B.  N.  S.  814,  104  L. 
T.  N.  S.  371,  27  Times  L.  R.  327,  4  B.  W. 
C.  C.  155;  Holmes  v.  Great  Northern  R.  Co. 
[]900]  2  Q.  B.  409,  69  L.  J.  Q.  B.  N.  S.  854, 


64  J.  P.  532,  48  Week.  Rep.  681,  83  L.  T.  N. 
S.  44,  16  Times  L.  R.  412. 

In  the  instant  case,  when  the  servant  re- 
ported to  his  foreman  and  received  his  in- 
structions for  the  day,  and  proceeded  to 
carry  out  these  instructions  by  starting  for 
the  place  where  he  was  to  work,  we  think 
the  relation  of  master  and  servant  com- 
menced, and  that  in  walking  to  the  place  of 
work  the  servant  was  performing  a  service 
growing  out  of  and  incidental  to  his  employ- 
ment. 

The  liability  provided  for  by  the  compen- 
sation act  is  in  lieu  of  any  other  liability 
whatsoever,  and  the  remedy  under  it  is  ex- 
clusive. Stat.  1911,  §  2394 — 4.  Holding  as 
we  do  that  the  relation  of  master  and 
servant  existed,  and  the  parties  being  sub- 
ject to  the  compensation  act,  the  remedy  of 
the  claimant  is  under  that  act,  and  not 
under  §  1339,  Stat. 

Judgment  affirmed. 

Siebecker  and  Timlin,  JJ.,took  no  part. 


WEST    VIRGINIA    SUPREME    COURT 
OF   APPEALS. 

C.  DE  CONSTANTIN,  Consul  on  Behalf  of 
Dependents  of  Guiseppe  Zippi,  Deceased, 

v. 

PUBLIC  SERVICE  COMMISSION  OF  THE 
STATE  OF  WEST  VIRGINIA. 

(_  w.  Va.  — ,  83  S.  E.  88.) 

Courts  —  jurisdiction  —  acts  of  Public 
Service  Commission. 

1.  The  jurisdiction  to  review  acts  of  the 
Public   Service   Commission,   respecting  the 
administration  of  the  workmen's  compensa- 
tion fund,  conferred  upon  the  supreme  court 
of   appeals   by    §   43   of   chapter    10   of   the 
Acts  of  1913  (Code  1913,  chap.  15p,  §  699), 
is  original,  not  appellate. 

For  other  cases,  see  Public  Service  Commis- 
sions, in  Dig.  1-52  ff.  8. 

Master  and  servant  —  workmen's  com- 
pensation —  injury  on  way  to  work. 

2.  An  injury  incurred  by  a  workman  in 
the  course  of  his  travel  to  his  place  of  work, 
and  not   on  the  premises   of  the  employer, 
does  not  give  right  to  participation  in  such 
fund,  unless  the  place  of  injury  was  brought 
within  the  scope  of  employment  by  an  ex- 
press or  implied  requirement  in  the  contract 

Headnotes  by  POFFENBARGER,  J. 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to   recovery   of   compensation   for   in- 
juries while  going  to  and  from  work,  see 
annotation,  post,  331. 
L.R.A.1916A. 


of  employment  of  its  use  by  the  servant  in 
going  to  and  returning  from  his  work. 
For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8. 

(September   29,    1914.) 

A  PPLICATION  for  an  order  requiring  the 
XJL  Public  Service  Commission  to  allow  a 
rejected  claim  made  on  behalf  of  the  depend- 
ents of  Guiseppe  Zippi,  deceased,  to  partici- 
pate in  the  workmen's  compensation  fund. 
Order  refused. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Joseph  W.  Henderson  and 
Francis  Rawle,  for  plaintiff: 

The  accident  resulted  from  the  employ- 
ment and  arose  in  the  course  of  the  employ- 
ment. 

Holness  v.  Mackay  [1899]  2  Q.  B.  319,  68 
L.  J.  Q.  B.  N.  S.  724,  47  Week.  Rep.  531, 
80  L.  T.  N.  S.  831,  15  Times  L.  R.  351,  1 
W.  C.  C.  13;  Hoskins  v.  Lancaster,  26  Times 
L.  R.  612,  3  B.  W.  C.  C.  476;  Bryant  v. 
Fissell,  84  N.  J.  L.  72,  86  Atl.  458,  3  N.  C. 
C.  A.  585;  Challis  v.  London  &  S.  W.  R. 
Co.  [1905]  2  K.  B.  154,  74  L.  J.  K.  B.  N.  S. 
569,  53  Week.  Rep.  613,  93  L.  T.  N.  S.  330, 
21  Times  L.  R.  486. 

Messrs  A.  A.  Lilly,  Attorney  General, 
and  Frank  Lively,  Assistant  Attorney  Gen- 
eral, for  defendant: 

The  injury  causing  death  was  not  received 
in  the  course  of  and  resulting  from  the  em- 
ployee's employment,  as  provided  in  §  25  of 
the  workmen's  compensation  act. 


330 


WORKMEN'S  COMPENSATION. 


Ruegg,  Employers'  Liability,  377;  Gil- 
mour  v.  Dorman,  L.  &  Co.  105  L.  T.  N.  S. 
54,  4  B.  W.  C.  C.  279;  Holness  v.  Mackay 
[1899]  2  Q.  B.  319,  68  L.  J.  Q.  B.  N.  S.  724, 
47  Week.  Rep.  531,  80  L.  T.  N.  S.  831,  15 
Times  L.  R.  351,  1  W.  C.  C.  13;  Walters  v. 
Staveley  Coal  &  I.  Co.  105  L.  T.  N.  S.  119, 
55  Sol.  Jo.  579,  4  B.  W.  C.  C.  303;  Caton  v. 
Summerlee  &  M.  Iron  &  Coal  Co.  39  Scot. 
L.  R.  762,  4  Sc.  Sess.  Cas.  5th  series,  989, 
10  Scot.  L.  T.  204;  Boyd,  Workmen's  Com- 
pensation, §  186;  Harper,  Workmen's  Com- 
pensation, §  34;  1  Bradbury,  Workmen's 
Compensation,  p.  404;  McLaren  v.  Cale- 
donian R.  Co.  [1911]  S.  C.  1075,  48  Scot. 
L.  R.  885,  5  B.  W.  C.  C.  492:  McNicol's 
Case,  215  Mass.  497,  ante,  306,  102  N.  E.  697, 
4  N.  C.  C.  A.  522;  Graham  v.  Barr  [1913] 
S.  C.  538  [1913]  W.  C.  &  Ins.  Rep.  202,  50 
Scot.  L.  R.  391,  6  B.  W.  C.  C.  416. 

Poffenbarger,  J.,  delivered  the  opinion 
of  the  court: 

The  rejection  of  the  claim  to  right  of  par- 
ticipation in  the  workmen's  compensation 
fund,  made  on  behalf  of  the  dependents  of 
Guiseppe  Zippi,  by  the  acting  royal  consul 
of  Italy,  is  the  occasion  of  this  first  applica- 
tion to  this  court  for  the  exercise  of  its  su- 
pervisory powers  over  the  Public  Service 
Commission  respecting  its  administration  of 
that  fund.  This  proceeding  is  authorized  by 
a  statute  different  from  the  one  under  which 
United  Fuel  Gas  Co.  v.  Public  Service  Com- 
mission, 73  W.  Va.  571,  80  S.  E.  931,  was 
instituted,  but  the  constitutional  provisions 
referred  to  in  the  opinion  in  that  case  ren- 
der it  impossible  to  treat  this  one  as  an 
ordinary  appeal,  or  bring  it  within  the  ap- 
pellate jurisdiction  of  this  court.  What  the 
statute  (§  43  of  chapter  10  of  the  Acts  of 
1913,  Code  1913,  chap.  15p  (§  699)  denomi- 
nates an  appeal  must,  if  possible,  be  regard- 
ed as  a  right  given  to  a  claimant  to  partici- 
pation in  the  fund  in  question,  to  apply  to 
this  court  for  the  exercise  of  its  original 
jurisdiction.  Any  other  construction  would 
render  the  provision  unconstitutional.  The 
Commission  itself  is  not  a  court.  It  is  only 
an  administrative  board,  possessing  quasi 
judicial  and  legislative  powers.  United 
.Fuel  Gas  Co.  v.  Public  Service  Commission, 
cited.  Its  powers  in  the  administration  of 
the  workmen's  compensation  fund  are  not 
substantially  different  from  its  powers  over 
other  matters  within  its  control;  and  the 
principles  upon  which  the  jurisdiction  of 
this  court  over  its  acts,  by  original  process, 
was  sustained  in  the  case  just  cited,  deter- 
mine the  jurisdictional  question  now  pre- 
sented. 

Only  the  claimant  to  participation  in  such 
fund  can  apply  to  this  court  for  such  relief, 
and  he  is  permitted  to  do  so  only  in  those 
L.R.A.1916A. 


instances  in  which  the  Commission,  by  its 
final  action,  has  denied  to  him  such  right, 
upon  some  ground  going  to  the  basis  of  his 
claim,  such  as  self-infliction  of  the  injury, 
of  which  he  complains,  or  incurrence  of  the 
injury  otherwise  than  in  the  course  of  his 
employment.  As  the  Commission  itself  and 
the  fund  are  creatures  of  the  legislative 
will,  it  was  competent  for  the  legislature  to 
deprive  the  Commission  of  all  discretionary 
power  respecting  the  right  of  participation, 
and  make  it  a  purely  legal  question.  In 
other  words,  it  could  make  it  mandatory 
upon  the  Commission  to  allow  participation, 
if  the  injury  arose  out  of  and  in  the  course 
of  employment,  and  was  not  self-inflicted, 
and  deny  to  the  Commission  the  right  to 
determine  what  constitutes  self-inflicted  in- 
jury or  an  injury  incurred  otherwise  than 
in  the  course  of  employment,  and  whether 
the  claimant  is  a  dependent  of  the  injured 
person,  by  making  all  such  questions  arising 
upon  the  facts  disclosed  questions  of  law  for 
determination  by  this  court,  in  the  exercise 
of  its  supervisory  power  over  officers  and 
inferior  tribunals.  In  this  manner  juris- 
diction has  been  conferred  upon  this  court 
to  order  allowance  of  such  claims,  as  it 
would  in  the  cases  of  formal  applications 
for  writs  of  mandamus.  As  to  this  ques- 
tion, the  legislature  conferred  only  minis- 
terial power  upon  the  Commission. 

In  the  opinion  of  the  Commission,  the 
injury  by  which  Zippi's  death  was  occasion- 
ed did  not  arise  out  of  his  employment, 
nor  was  it  incurred  in  the  course  thereof. 
He  was  an  employee  of  Kefauver  &  McLar- 
an,  contractors,  engaged  in  construction 
work  on  some  portion  of  the  Baltimore  & 
Ohio  Railroad.  Just  what  the  relation  of 
this  work  to  the  main  line  of  the  railroad 
was  is  not  shown,  but  Zippi  was  not  killed 
on  the  construction  work.  His  death  oc- 
curred on  the  main  line,  and  it  is  supposed 
to  have  resulted  from  his  having  stepped  in 
front  of  one  train  in  an  effort  to  escape  an- 
other. The  inspector's  report  and  other  evi- 
dence are  to  the  effect  that  he  was  walking 
on  the  main  double  track  in  going  to  his 
work.  A  statment  of  the  case,  prepared  by 
a  claim  clerk,  says  his  only  way  of  access 
to  his  work  was  by  way  of  the  main  line; 
but  this  statement  is  not  sustained  by  evi- 
dence. The  inspector's  report  does  not  show 
it,  nor  is  there  any  other  evidence  bearing 
on  the  question.  In  the  brief  filed  for  the 
petitioner  it  is  said  Zippi  was  killed  only 
a  few  minutes  before  the  usual  hour  for  the 
commencement  of  actual  work,  7  o'clock 
A.  M.,  the  accident  having  occurred  at  6:55 
A.  M.;  but  no  evidence  shows  at  what  time 
he  would  have  commenced  his  work. 

If  it  had  been  shown  that  the  decedent, 
approaching  his  place  of  work  by  the  only 


DE  CONSTANTIN  v.  PUBLIC  SERVICE  COMMISSION. 


331 


means  of  access  thereto,  was  almost  within 
the  reach  of  it  at  the  time  of  his  injury, 
some  of  the  authorities  relied  upon  might 
iustify  the  allowance  of  the  claim;  for  the 
employment  is  not  limited  to  the  exact  mo- 
ment of  arrival  at  the  place  of  actual  work, 
nor  to  the  moment  of  retirement  therefrom. 
It  includes  a  reasonable  amount  of  time  be- 
fore and  after  actual  work.  Gane  v.  Norton 
Hill  Colliery  Co.  [1909]  2  K.  B.  539,  78 
L.  J.  K.  B.  N.  S.  921,  100  L.  T.  N.  S.  979, 
25  Times  L.  R.  640,  2  B.  W.  C.  C.  42 ;  McKee 
v.  Great  Northern  R.  Co.  42  Ir.  Law, 
Times  ]32,  1  B.  W.  C.  C.  165  Bradbury, 
Workmen's  Compensation,  pp.  404-407. 
A  reasonable  time  after  the  termination  of 
actual  work  is  allowed.  If  a  workman  is 
injured  on  the  premises  of  the  employer,  and 
while  leaving  his  place  of  actual  work  by 
the  usual  course  of  travel,  the  injury  is 
deemed  to  have  arisen  out  of  the  employ- 
ment. Kinney  v.  Baltimore  &  O.  Employes' 
Relief  Asso.  35  W.  Va.  385,  35  L.R.A.  142, 
14  S.  E.  8.  Since  injury  after  termination 
of  actual  work,  while  on  the  premises  of  the 
employer  and  in  pursuit  of  the  usual  way  of 
leaving  the  same,  is  held  to  be  within  the 
course  of  employment  and  to  have  arisen 
out  of  the  same,  it  seems  clear  that  an  in- 
jury to  a  workman  while  coming  to  his 
place  of  work  on  the  premises  of  the  em- 
ployer, and  by  the  only  way  of  access,  or 
the  one  contemplated  by  the  contract  of  em- 


ployment, must  also  be  regarded  as  having 
been  incurred  in  the  course  of  the  employ- 
ment and  to  have  arisen  out  of  the  same. 
If,  in  such  case,  injury  does  not  occur  on 
the  premises,  but  in  close  proximity  to  the 
place  of  work,  and  on  a  road  or  other  way 
intended  and  contemplated  by  the  contract 
as  being  the  exclusive  means  of  access  to 
the  place  of  work,  the  same  principle  would 
apply  and  govern.  If  the  place  at  which  the 
injury  occurred  is  brought  within  the  con- 
tract of  employment  by  the  requirement  of 
its  use  by  the  employee,  so  that  he  has  no 
discretion  or  choice  as  to  his  mode  or  man- 
ner of  coming  to  work,  such  place  and  its 
use  seem  logically  to  become  elements  or 
factors  in  the  employment,  and  the  injury 
thus  arises  out  of  the  employment  and  is 
incurred  in  the  course  thereof.  But,  on  the 
contrary,  if  the  employee,  at  the  time  of 
the  injury,  has  gone  beyond  the  premises  of 
the  employer,  or  has  not  reached  them,  and 
has  chosen  his  own  place  or  mode  of  travel, 
the  injury  does  not  arise  out  of  his  employ- 
ment, nor  is  it  within  the  scope  thereof. 

As  the  evidence  adduced  in  support  of  the 
claim  did  not,  for  the  reasons  already 
stated,  bring  it  within  the  principles  here 
referred  to,  the  Commission  properly  reject- 
ed the  claim,  and  the  prayer  for  an  order, 
requiring  allowance  thereof,  cannot  be 
granted. 


Annotation — Recovery  of  compensation  for  injuries  received  while  going 

to  and  from  work. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

In  the  absence  of  special  circumstances 
the  act  does  not  apply  to  a  workman 
going  to  or  from  his  work.  Edwards  v. 
Wingham  Agri.  Implement  Co.  [1913]  3 
K.  B.  (Eng.)  596,  82  L.  J.  K.  B.  N.  S. 
998,  109  L.  T.  N.  S.  50  [1913]  W.  N.  221, 
57  Sol.  Jo.  701,  6  B.  W.  C.  C.  511 ;  Kelly 
v.  The  Foam  Queen  (1910)  3  B.  W.  C.  C. 
(Eng.)  113;  Poulton  v.  Kelsall  [1912]  2 
K.  B.  (Eng.)  131,  81  L.  J.  K.  B.  N.  S. 
774,  106  L.  T.  N.  S.  522,  28  Times  L.  R. 
329,  [1912]  W.  C.  Rep.  295  [1912]  W.  N. 
98,  5  B.  W.  C.  C.  318;  Davies  v.  Rhymney 
Iron  Co.  (1900)  16  Times  L.  R.  (Eng.) 
329,  2  W.  C.  C.  22;  Nolan  v.  Porter 
(1909)  2  B.  W.  C.  C.  (Eng.)  106;  Hills  v. 
Blair  (1914)  182  Mich.  20, 148  N.  W.  243, 
7  N.  C.  C.  A.  409. 

But  undoubtedly  such  accident  might 
be  brought  within  the  scope  of  the  em- 
ployment by  the  terms  of  the  contract 
of  employment.  DE  CONSTANTIN  v.  PUB- 
LIC SERVICE  COMMISSION;  Fumiciello's 
L.R.A.1916A. 


Case  (1914)  219  Mass.  488,  107  N.  E. 
349;  Donovan's  Case  (1914)  217  Mass. 
76,  104  N.  E.  431,  Ann.  Cas.  1915C,  778, 
4  N.  C.  C.  A.  549. 

So,  a  miner  injured  while  riding  from 
his  home  to  the  mine  on  a  train  provided 
by  the  employer  in  accordance  with  the 
terms  of  the  contract  of  employment  suf- 
fers injury  from  accident  arising  out  of 
the  employment.  Cremins  v.  Guest 
[1908]  1  K.  B.  (Eng.)  469,  77  L.  J.  K. 

B.  N.  S.  326,  24  Times  L.  R.  189,  98  L. 
T.  N.  S.  335,  1  B.  W.  C.  C.  160;  Walton 
v.  Tredegar  Iron  &  Coal  Co.  [1913]  W. 

C.  &  Ins.  Rep.  (Eng.)  457,  6  B.  W.  C.  C. 
592. 

Ordinarily  the  employment  is  held  to 
begin  in  the  ordinary  course  only  when 
the  time  for  work  has  arrived  and  the 
locality  has  been  reached  at  which  the 
work  is  to  be  performed.  Anderson  v. 
Fife  Coal  Co.  (1910)  47  Scot.  L.  R.  3 
[1910]  S.  C.  8,  3  B.  W.  C.  C.  539;  White- 
bread  v.  Arnold  (1908)  99  L.  T.  N.  S. 
(Eng.)  103;  Holness  v.  Mackay  [1899] 
2  Q.  B.  (Eng.)  319,  68  L.  J.  K.  B.  N.  S. 


332 


WORKMEN'S  COMPENSATION. 


724,  47  Week.  Rep.  531,  80  L.  T.  N.  S. 
831,  15  L.  T.  N.  S.  831,  15  Times  L.  R. 
351. 

In  a  Scotch  case  recovery  was  denied 
where  a  workman  who,  after  the  conclu- 
sion of  his  day's  work,  was  walking  along 
a  private  railway  track  belonging  to  his 
master,  was  run  over  at  a  point  about 
230  yards  from  the  place  where  he 
worked.  Caton  v.  Summerlee  &  M.  Iron  & 
Coal  Co.  (1902)  4  Sc.  Sess.  Cas.  5th 
series,  989,  39  Scot.  L.  R.  762,  10  Scot. 
L.  T.  204. 

A  workman  does  not  suffer  injury  by 
accident  arising  out  of  and  in  the  course 
of  his  employment  where  he  is  injured 
on  his  way  home  from  work  along  a  pub- 
lic footpath,  although  the  path  had  been 
dedicated  to  the  public  by  the  employers, 
over  whose  land  it  ran.  Williams  v. 
Smith  (1913)  108  L.  T.  N.  S.  (Eng.)  200 
[1913]  W.  C.  &  Ins.  Rep.  146,  6  B.  W. 
C.  C.  102. 

A  workman  whose  duties  were  entirely 
underground  did  not  suffer  injury  by  ac- 
cident arising  out  of  and  in  the  course 
of  his  employment  where  he  was  injured 
after  he  had  finished  his  day's  work,  and 
was  above  ground  at  a  place  about  400 
feet  from  the  shaft's  mouth,  and  280 
yards  from  the  colliery  office.  Graham  v. 
Barr  [1913]  S.  C.  538,  50  Scot.  L.  R.  391 
[1913]  W.  C.  &  Ins.  Rep.  202,  6  B.  W.  C. 
C.  412. 

Compensation  is  not  recoverable  where 
a  workman  had  concluded  his  day's  work 
and  was  injured  while  riding  to  his  home 
on  a  bicycle,  along  the  main  road.  Ed- 
wards v.  Wingham  Agri.  Implement  Co. 
[1913]  3  K.  B.  (Eng.)  596,  82  L.  J.  K.  B. 
N.  S.  998, 109  L.  T.  N.  S.  50  [1913]  W.  N. 
221,  57  Sol.  Jo.  701,  6  B.  W.  C.  C.  511. 

It  has  been  said,  however,  that  the 
moment  that  actual  work  begins  cannot 
be  taken  as  the  true  moment  of  the  com- 
mencement of  the  employment  for  the 
purposes  of  the  act.  Cross  v.  Catteral, 
an  unreported  decision  of  the  House  of 
Lords  cited  in  Hoskins  v.  Lancaster 
(1910)  26  Times  L.  R.  (Eng.)  612,  3  B. 
W.  C.  C.  476.  In  Lawless  v.  Wigan  Coal 
&  I.  Co.  (1908)  124  L.  T.  Jo.  (Eng.)  532, 
1  B.  W.  C.  C.  153,  the  court  said :  "The 
authorities  clearly  decide  that  if  a  work- 
man arrives  at  the  master's  premises 
where  he  is  employed  at,  or  within  a  rea- 
sonable margin  before,  the  time  at  which 
he  is  due  to  commence  work,  and,  whilst 
physically  engaged  in  making  his  way 
from  the  entrance  of  the  master's  prem- 
ises to  the  place  where  he  works,  meets 
with  an  accident,  it  is  open  to  the  judge 
to  say  that  the  accident  arose  out  of  and 
in  the  course  of  his  employment." 
L.R.A.1916A. 


It  is  not  necessary  that  the  hour  of 
work  shall  have  arrived  and  that  the 
work  has  itself  been  actually  begun. 
Hills  v.  Blair  (1914)  182  Mich.  20,  148 
N.  W.  243,  7  N.  C.  C.  A.  409:  MILWAUKEE 
v.  ALTHOFP,  ante,  327. 

And  the  moment  that  the  actual  work 
stops  cannot  be  considered  in  every  case 
as  the  time  of  the  termination  of  the  em- 
ployment. Gane  v.  Norton  Hill  Colliery 
Co.  [1909]  2  K.  B.  (Eng.)  539,  78  L.  J. 
K.  B.  N.  S.  921,  100  L.  T.  N.  S.  979,  25 
Times  L.  R.  640,  2  B.  W.  C.  C.  42. 

On  the  one  hand,  it  has  been  held  that 
it  is  not  a  sufficient  test  that  the  work- 
man is  on  the  premises  of  the  employer. 
Hills  v.  Blair  (Mich.)  supra.  On  the 
other  hand,  the  circumstance  that  the  de- 
ceased employee  was  not  upon  the  estate 
of  his  employer  at  the  time  of  receiving 
his  injury  has  been  said  to  be  of  slight 
significance.  Re  McPhee  (1915)  —  Mass. 
— ,  109  N.  E.  633. 

An  accident  to  a  workman,  caused  by 
slipping  on  some  ice  at  a  point  a  quarter 
of  mile  from  the  place  of  work,  does  not 
arise  out  of  and  in  the  course  of  the  em- 
ployment, although  he  was  on  the  em- 
ployer's premises  at  the  time.  Gilmour 
v.  Dorman  (1911)  105  L.  T.  N.  S.  (Eng.) 
54,  4  B.  W.  C.  C.  279. 

A  miner  who,  on  going  to  his  place  of 
work,  takes,  with  the  employer's  permis- 
sion, a  short  cut  over  the  employer's 
premises,  and  slips  on  some  steps  three 
quarters  of  a  mile  from  the  place  of 
work,  does  not  suffer  injury  by  accident 
arising  out  of  and  in  the  course  of  his 
employment.  Walters  v.  Staveley  Coal 
&  I.  Co.  (1911;  H.  L.)  105  L.  T.  N.  S. 
(Eng.)  119,  55  Sol.  Jo.  579,  4  B.  W.  C.  C. 
303. 

Recovery  may  be  had  for  an  accident 
occurring  before  the  place  of  work  has 
been  reached,  if,  during  the  antecedent 
period  within  which  it  occurred,  the  serv- 
ant was,  as  a  matter  of  fact,  under  the 
master's  control.  Holmes  v.  Great  North- 
ern R.  Co.  [1900]  2  Q.  B.  (Eng.)  409,  83 
L.  T.  N.  S.  44,  69  L.  J.  Q.  B.  N.  S.  854, 
64  J.  P.  532,  48  Week.  Rep.  681, 16  Times 
L.  R.  412 ;  Mackenzie  v.  Coltness  Iron  Co. 
(1904)  6  Sc.  Sess.  Cas.  5th  series  (Scot.) 
8;  Fitzpatrick  v.  Hindley  Field  Colliery 
Co.  (1901)  4  W.  C.  C.  (Eng.)  7. 

Where  employees  came  to  their  work 
by  a  train  which  arrived  about  twenty 
minutes  before  the  actual  work  began, 
and,  to  the  knowledge  of  the  employer, 
customarily  spent  the  twenty  minutes  in 
getting  refreshments  in  a  cabin  main- 
tained by  the  employer  for  them,  a  work- 
man who,  while  proceeding  to  deposit  his 


GOING  TO  AND  FROM  WORK. 


ticket  at  the  ticket  office,  as  he  was  re- 
quired to  do  by  the  rules  of  the  employ- 
er, fell  into  an  excavation  near  the  ticket 
office  about  twenty  minutes  before  the 
work  was  to  begin,  was  injured  by  acci- 


dent arising  out  of  and  in  the  course  of 
his  employment.  Sharp  v.  Johnson  [1905] 
2  K.  B.  (Eng.)  139,  74  L.  J.  K.  B.  N.  S. 
566,  53  Week.  Rep.  597,  92  L.  T.  N.  S. 
21,  21  Times  L.  R.  482.  W.  M.  G. 


MASSACHUSETTS     SUPREME     JUDI- 
CIAL COURT. 

STANDARD  ACCIDENT  INSURANCE 
COMPANY,  Appt. 

CHARLES  J.  SPONATSKI,  Deceased,  Em- 
ployee. 

ELLEN  V.  SPONATSKI,  Dependent, 
Widow. 

LUNDIN    STEEL    CASTING    COMPANY, 
Employer. 

(220  Mass.  526,  108  N.  E.  466.) 

Evidence  —  burden  of  proof  —  work- 
men's compensation  act. 

1.  Claimants   under  thf   workmen's   com- 
pensation act  have  the  burden  of  establish- 
ing by   the   preponderance   of   evidence   the 
essential    facts   necessary   to   warrant   pay- 
ment of  compensation  under  the  act. 

For  other  cases,  see  Evidence,  II.  6,  in 
Dig.  1-52  N.  8. 

Master  and  servant  —  workmen's  com- 
pensation act  —  suicide  —  irresistible 
impulse. 

2.  Compensation  is  recoverable  under  the 
workmen's  compensation  act  for  death  of  a 
workman  by  throwing  himself  from  a  win- 
dow, as  the  result  of  injuries  arising  out  of 
and  in  the  course  of  his  employment,  which 
deranged   his   mind   so  as  to   create   an   ir- 
resistible impulse  to  commit  the  act  which 
caused  death. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8. 

(March  31,  1915.) 

APPEAL  by  insurer  from  the  findings  of 
the  Industrial  Accident  Board  confirm- 
ing the  award  of  the  committee  of  arbitra- 
tion in  a  proceeding  by  a  dependent  widow 
under  the  workmen's  compensation  act  to 
recover  compensation  for  the  death  of  her 
husband.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Dickson  &  Knowles,  for  appel- 
lant: 

Compensation  was  not  recoverable  under 
the  workmen's  compensation  act  for  the 
death  of  the  dependent's  husband. 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  applicability  of  compensation  acts 
where  insane  workman  commits  suicide  or 
suffers    personal    injuries,    see    annotation, 
post,  339. 
L.R.A.1916A. 


Daniels  v.  New  York,  N.  H.  &  H.  R.  Co. 
183  Mass.  393,  62  L.R.A.  751,  67  N.  E.  424; 
25  Harvard  L.  Rev.  303;  Scheffer  v.  Wash- 
ington City,  V.  M.  &  G.  S.  R.  Co.  105  U.  S. 
249,  26  L.  ed.  1070;  Louisiana  Mut.  Ins. 
Co.  v.  Tweed,  7  Wall.  44,  19  L.  ed.  65 ;  Mil- 
waukee &  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S. 
469,  24  L.  ed.  256;  McDonald  v.  Snelling, 
14  Allen,  290,  92  Am.  Dec.  768;  Carter  v. 
Towne,  103  Mass.  507;  Stone  v.  Boston  & 
A.  R.  Co.  171  Mass.  536,  41  L.R.A.  794,  51 
N.  E.  1,  4  Am.  Neg.  Rep.  490;  Horan  v. 
Watertovvn,  217  Mass.  185,  104  N.  E.  464; 
Bohaker  v.  Travelers'  Ins.  Co.  215  Mass.  32, 
46  L.R.A.  (N.S.)  543,  102  N.  E.  342;  Dun- 
ham v.  Clare  [1902]  2  K.  B.  292,  71  L.  J. 
K.  B.  N.  S.  683,  66  J.  P.  612,  50  Week.  Rep. 
596,  86  L.  T.  N.  S.  751,  18  Times  L.  R. 
645;  Southall  v.  Cheshire  County  News  Co. 
5  B.  W.  C.  C.  251;  Malone  v.  Cayzer  [1908] 
S.  C.  479,  1  B.  W.  C.  C.  27,  45  Scot.  L.  R. 
351. 

The  burden  is  upon  the  department  to 
prove  that  the  death  of  her  intestate  result- 
ed from  the  injury  which  he  received  on 
September  17,  1913,  and  if  she  fails  to  sus- 
tain the  burden  of  proof,  then  she  is  not  en- 
titled to  recover.  She  has  the  burden  of 
proving  this  not  necessarily  by  direct  evi- 
dence, for  it  is  quite  well  established  that 
inferences  of  fact  may  be  drawn  by  the 
court.  But  when  the  facts  are  such  that  it 
is  equally  probable  that  there  was  and  there 
was  not  an  injury  resulting  in  death  arising 
out  of  and  in  the  course  of  the  deceased's 
employment,  then  plaintiff  cannot  recover. 

Barnabas  v.  Bersham  Colliery  Co.  102  L. 
T.  N.  S.  621,  3  B.  W.  C.  C.  216,  103  L.  T. 
N.  S.  513,  55  Sol.  Jo.  63,  4  B.  W.  C.  C.  119, 
48  Scot.  L.  R.  727;  Hewitt  v.  The  Duchess 
[1910]  1  K.  B.  772,  79  L.  J.  K.  B.  N.  S. 
867,  102  L.  T.  N.  S.  204,  26  Times  L.  R.  300, 
54  Sol.  Jo.  325,  3  B.  W.  C.  C.  239,  [1911] 
A.  C.  671,  81  L.  J.  K.  B.  N.  S.  33,  105  L. 
T.  N.  S.  121,  55  Sol.  Jo.  598,  4  B.  W. 
C.  C.  317;  Marshall  v.  The  Wild  Rose 
[1910]  A.  C.  486,  79  L.  J.  K.  B.  N.  S.  912, 
103  L.  T.  N.  S.  114,  26  Times  L.  R.  608, 
54  Sol.  Jo.  678,  3  B.  W.  C.  C.  514,  11  Asp. 
Mar.  L.  Cas.  409,  48  Scot.  L.  R.  701; 
Thackway  v.  Connelly,  3  B.  W.  C.  C.  37; 
Hawkins  v.  Powell's  Tillery  Steam  Coal 
Co.  [1911]  1  K.  B.  988,  80  L.  J.  K.  B.  N.  S. 
769,  104  L.  T.  N.  S.  365,  27  Times  L.  R. 
282,  55  Sol.  Jo.  329,  4  B.  W.  C.  C.  178; 
Walker  v.  Murray  [1911]  S.  C.  825,  48  Scot. 


334 


WORKMEN'S  COMPENSATION. 


L.  R.  741,  4  B.  W.  C.  C.  409;  Jenkins  v. 
Standard  Colliery  Co.  105  L.  T.  N.  S.  730, 

28  Times  L.  R.  7,  5  B.  W.  C.  C.  71 ;  Charvil 
v.  Manser  &  Co.  5  B.  W.  C.  C.  385;   Len- 
drura  v.  Ayr  Steam  Shipping  Co.  [1913]  S. 
C.  331,  50  Scot.  L.  R.   173,  6  B.  W.  C.  C. 
326;  Dyhouse  v.  Great  Western  R.  Co.  109 
L.  T.  N.  S.  193,  6  B.  W.  C.  C.  691 ;  Plumb 
v.  Cobden  Flour  Mills  Co.   [1914]  A.  C.  62, 
83  L.  J.  K.  B.  N.  S.  197,  109  L.  T.  N.  S.  759, 
30    Times    L.    R.    174,    58    Sol.    Jo.    184,    7 

B.  W.  C.  C.  1,  51  Scot.  L.  R.  861;Woods  v. 
Thomas  Wilson,  Sons  &  Co.  29  Times  L.  R. 
726,  6  B.  W.  C.  C.  750;  Fenton  v.  J.  Thor- 
ley  &  Co.  [1903]  A.  C.  443,  72  L.  J.  K.'  B. 
N.  S.  787,  52  Week.  Rep.  81,  89  L.  T.  N.  S. 
314,  19  Times  L.  R.  684,  5  W.  C.  C.  1;  Trim 
Joint   Dist.   School   v.   Kelly    [1914]    A.   C. 
667,  83  L.  J.  P.  C.  N.  S.  220,  111  L.  T.  N.  S. 
305,  30  Times  L.  R.  452,  58  Sol.  Jo.  493,  48 
Ir.  Law  Times,  141,  7  B.  W.  C.  C.  274. 

Under  the  English  act,  if  one  exposes  him- 
self to  a  risk  unconnected  with  the  employ- 
ment, which  neither  of  the  parties  to  the 
contract  of  service  could  have  reasonably 
contemplated  as  properly  belonging  or  in- 
cidental to  it,  the  dependent  is  not  entitled 
to  recover,  and  the  mere  fact  that  the  work 
that  is  being  done  is  for  the  employer's  in- 
terest, and  not  for  the  employee,  does  not 
necessarily  make  the  master  liable. 

Brice  v.  Lloyd  [1909]  2  K.  B.  804,  101 
L.  T.  N.  S.  472,  25  Times  L.  R.  759,  53  Sol. 
Jo.  744,  2  B.  W.  C.  C.  26 ;  Martin  v.  Fuller- 
ton  &  Co.  [1908]  S.  C.  1030,  45  Scot.  L.  R. 
812,  1  B.  W.  C.  C.  168;  M'Daid  v.  Steel 
[1911]  S.  C.  859,  48  Scot.  L.  R.  765,  4  B. 
W.  C.  C.  412;  Parker  v.  Pout,  105  L.  T.  N. 
S.  493,  5  B.  W.  C.  C.  45 ;  Powell  v.  Bryndu 
Colliery  Co.  5  B.  W.  C.  C.  124;  Barnes  v. 
Nunnery  Colliery  Co.  [1912]  A.  C.  44,  81  L. 
J.  K.  B.  N.  S.  213,  105  L.  T.  N.  S.  961,  28 
Times  L.  R.  135,  56  Sol.  Jo.  159,  49  Scot. 
L.  R.  688,  5  B.  W.  C.  C.  195;  Revie  v.  Cum- 
ming  [1911]  S.  C.  1032,  48  Scot.  L.  R.  831, 
5  B.  W.  C.  C.  483;  Halvorsen  v.  Salvesen 
[1912]  S.  C.  99,  49  Scot.  L.  R.  27,  5  B.  W. 

C.  C.  519;   Whiteman  v.   Clifden,  6  B.  W. 
C.  C.  49;  Wemyss  Coal  Co.  v.  Symon  [1912] 
S.  C.  1239,  49  Scot.  L.  R.  921,  6  B.  W.  C.  C. 
298;    Guilfoyle    v.    Fennessy,    47    Ir.    Law 
Times,    19,   6   B.   W.   C.    C.   453;    Plumb   v. 
Cobden  Flour  Mills  Co.  108  L.  T.  N.  S.  161, 

29  Times  L.  R.  232,  57  Sol.  Jo.  264,  6  B. 
W.  C.  C.  245. 

Messrs.  James  F.  Creed  and  John  J. 
Mansfield  for  appellee. 

Rug-g,  Ch.  J.,  delivered  the  opinion  of  the 
court : 

The  deceased  employee  received  an  injury 
in  the  course  of  and  arising  out  of  his  em- 
ployment through  a  splash  of  molten  lead 
into  his  eye  on  September  17,  1913.  He  was 
L.R.A.1916A. 


treated  at  a  hospital  until  October  13,  1913,. 
when,  as  was  found  by  the  Industrial  Acci- 
dent Board,  "while  insane  as  a  result  of  his 
injury,  he  threw  himself  from  a  window 
and  was  fatally  injured."  The  Board  found 
further  that  "this  insanity  was  brought 
about  and  resulted  from  the  injury,"  and 
that,  while  the  evidence  was  very  close  upon 
that  point,  the  death  "did  result  from  'an 
uncontrollable  impulse  and  without  con- 
scious volition  to  produce  death,' "  under 
Daniels  v.  New  York,  N.  H.  &  H.  R.  Co.  183 
Mass.  393,  62  L.R.A.  751,  67  N.  E.  424.  The 
arbitration  committee,  whose  findings  were 
affirmed  and  adopted  by  the  Industrial  Acci- 
dent Board,  put  it  this  way:  "We  find  and 
decide  as  a  fact  that  the  accident  injured 
the  eyesight  of  the  deceased,  caused  the  loss- 
of  his  eye,  caused  a  nervous  and  mental 
derangement,  caused  insane  hallucinations, 
and  caused  him,  while  mentally  deranged,  in, 
a  state  of  insanity  and  under  the  influence 
of  hallucination,  by  an  irresistible  impulse, 
to  commit  suicide,  and  that  the  accident  was- 
the  sole,  direct,  and  proximate  cause  of  the 
suicide." 

The  insurer  contends  that  these  findings 
are  not  warranted  by  the  evidence.  That- 
question  is  open  to  it,  for  the  substance  of 
the  evidence  is  reported.  Pigeon's  Case,  210- 
Mass.  51,  102  N.  E.  932,  Ann.  Cas.  1915A, 
737,  4  N.  C.  C.  A.  516. 

The  burden  of  proving  the  essential  facts 
necessary  to  establish  a  case  warranting  the 
payment  of  compensation  rests  upon  the 
dependent  in  a  case  arising  under  the  work- 
men's compensation  act  as  much  as  it  does- 
upon  a  plaintiff  in  any  proceeding  at  law. 
Hie  dependent  must  go  further  than  simply 
to  show  a  state  of  facts  which  is  as  equally 
consistent  with  no  right  to  compensation  as 
it  is  with  such  right.  They  can  no  more 
prevail  if  factors  necessary  to  support  the- 
claim  are  left  to  surmise,  conjecture,  guess, 
or  speculation,  than  can  a  plaintiff  in  the 
ordinary  action  in  tort  or  contract.  A  sure- 
foundation  must  be  laid  by  a  preponder- 
ance of  evidence  in  support  of  the  claim, 
before  the  dependents  can  succeed.  The  ele- 
ments that  need  to  be  proved  are  quite  dif- 
ferent from  those  in  the  ordinary  action  at 
law  or  suit  in  equity,  but,  so  far  as  these 
elements  are  essential,  they  must  be  proved 
by  the  same  degree  of  probative  evidence. 
Of  course  this  does  not  mean,  as  was  said  by 
Lord  Loreburn  in  Marshall  v.  The  Wild 
Rose  [1910]  A.  C.  486,  3  B.  W.  C.  C. 
514,  "that  he  must  demonstrate  his  case. 
It  only  means,  if  there  is  no  evidence  nt 
his  favor  upon  which  a  reasonable  man 
can  act,  he  will  fail."  If  the  evidence, 
though  slight,  is  yet  sufficient  to  make  a 
reasonable  man  conclude  in  his  favor  OIL 
the  vital  points,  then  his  case  is  proved.. 


HE  STANDARD  ACCI.  INS.  CO. 


335 


But  the  rational  mind  must  not  be  left  in 
such  uncertainty  that  these  essential  ele- 
ments are  not  removed  from  the  realm  of 
fancy.  Plumb  v.  Cobden  Flour  Mills  Co 
[1914]  A.  C.  62,  83  L.  J.  K.  B.  N.  S.  197, 
109  L.  T.  N.  S.  759,  30  Times  L.  R.  174,  58 
Sol.  Jo.  184,  7  B.  W.  C.  C.  1,  51  Scot.  L.  R. 
861:  Barnabas  v.  Bersham  Colliery  Co.  103 
L.  T.  N.  S.  513,  55  Sol.  Jo.  63,  4  B!  W.  C.  C. 
119,  48  Scot.  L.  R.  727  (House  of  Lords)  ; 
Fletcher  v.  The  Dutchess  [191 1]  A.  C.  671, 
81  L.  J.  K.  B.  N.  S.  33,  105  L.  T.  N.  S.  121, 
55  Sol.  Jo.  598,  4  B.  W.  C.  C.  317.  See 
also  Childs  v.  American  Exp.  Co.  197  Mass. 
337,  84  N.  E.  128;  Bigwood  v.  Boston  & 
N.  Street  R.  Co.  209  Mass.  345,  35  L.R.A 
(N.S.)  113,  95  N.  E.  751.  The  board  adopt- 
ed rulings  and  thereby  instructed  itself  as 
matter  of  law  in  accordance  with  the  sub- 
stance of  these  propositions  as  requested  by 
the  insurer,  and  no  error  is  shown  in  this 
regard. 

There'  was  evidence  tending  to  show  that, 
although  for  a  time  after  the  injury  the  de- 
ceased was  in  his  normal  temperament, 
which  was  hopeful  and  joyous,  he  then  be- 
came silent  and  moody,  and  was  depressed, 
and  suffered  from  certain  marked  hallucina- 
tions. He  did  not  appear  affectionate  as  he 
always  theretofore  had  been  toward  his  wife 
and  young  children.  There  were  two  wit- 
nesses of  the  event  which  directly  produced 
his  death.  One  gave  the  following  descrip- 
tion :  "That  morning  I  was  making  my 
first  visit  to  the  ward.  .  .  .  Mr.  Spon- 
atski  was  sitting  on  the  window  sill  leaning 
against  the  frame  and  his  feet  were  up 
against  the  other  side.  The  window  was 
open  and  he  was  looking  out  and  I  spoke  to 
him  and  asked  him  to  come  down.  He 
turned  around  and  gave  me  a  kind  of  wild 
look.  I  thought  he  was  getting  off  the  win- 
dow sill.  He  let  one  foot  down  and  raised 
up  on  the  other  knee  and  at  that  he  sot  up 
on  the  window  sill  and  leaped  right  out 
.  .  .  It  happened  very  quick.  .  .  .  He 
had  a  wild  look;  he  looked  as  if  he  was 
frightened.  .  .  .  He  appeared  as  if  he 
had  just  woke  up  out  of  a  deep  thought. 
Kind  of  wild." 

The  other  said  that  after  he  was  spoken 
to,  "he  hesitated  a  few  minutes ;  he  looked 
as  blank;  he  was  undecided  what  to  do: 
[he  had]  a  very  wild,  glassy  look.  He 
didn't  seem  to  act  as  though  he  heard  at 
all, — just  looked  blank.  .  .  .  He  had  a 
vacant  stare  as  though  he  didn't  see  you, — 
as  though  he  was  picturing  things  he  didn't 
see;  things  in  his  imagination.  He  didn't 
pay  a  bit  of  attention  to  us  at  all. — just  as 
if  you  were  not  there." 

The  medical  examiner  who  made  a  post 
mortem  examination  of  the  brain  testified 
L.R.A.1916A. 


that  the  deceased  "did  not  have  any  form 
of  insanity,  except  possibly  general  paresis, 
but  for  any  other  form  I  could  not  express 
an  opinion." 

An  alienist  of  experience  testified  that 
probably  there  was  developed  from  the  ac- 
cident a  "mental  disturbance"  accompanied 
by  "delusions  and  hallucinations,"  and  as  a 
result  committed  suicide.  After  his  death  a 
letter,  which  the  Board  decided  was  written 
by  him  was  found  under  his  pillow,  as  fol- 
lows: 

My  wife  folks  are  not  to  blame  for  any- 
thing my  wife  was  a  pur  woman  when  I 
married  her  she  be  is  pure  to  this  day  it 
is  all  my  own  fault. 

[Signed]  Martin  Sponatski. 

Aside  from  this  there  was  no  evidence 
tending  to  show  that  he  had  contemplated 
suicide,  or  that  the  jumping  from  the  win- 
dow was  the  exercise  of  even  a  "moderately 
intelligent  power  of  choice."  Daniels  v. 
New  York,  N.  H.  &  H.  R.  Co.  183  Mass. 
393,  62  L.R.A.  75],  67  N.  E.  424. 

The  letter  does  not  seem  to  us  necessarily 
indicative  of  a  suicidal  purpose.  It  was 
not  signed  by  the  name  of  the  deceased, 
which  was  Charles  J.  Sponatski.  It  ap- 
parently was  wholly  the  product  of  a  dis- 
ordered intellect.  It  is  as  consistent  with 
some  other  phantom  of  an  unbalanced  im- 
agination as  it  is  with  a  volition  to  end  his 
life.  The  circumstances  of  the  leap  from  the 
window  as  narrated  by  all  the  eye-witnesses 
point  rather  to  ungovernable  lunacy  than  to 
the  volition  even  of  a  diseased  mind.  The 
finding  in  this  respect,  although  hanging 
on  a  rather  slender  thread  of  evidence,  is 
not  unsupported  Therefore  it  must  stand. 

This  decision  rests  upon  the  rule  estab- 
lished in  Daniels  v.  New  York,  N.  H.  &  H. 
R.  Co.  supra.  That  rule  applies  to  cases 
arising  under  the  workmen's  compensation 
act.  It  is  that  where  there  follows  as  the 
direct  result  of  a  physical  injury  an  in- 
sanity of  such  violence  as  to  cause  the  vic- 
tim to  take  his  own  life  through  an  uncon- 
trollable impulse  or  in  a  delirium  of  frenzy, 
"without  conscious  volition  to  produce 
death,  having  knowledge  of  the  physical 
nature  and  consequences  of  the  act,"  then 
there  is  a  direct  and  unbroken  causal  con- 
nection between  the  physical  injury  and  the 
death.  But  where  the  resulting  insanity  is 
such  as  to  cause  suicide  through  a  voluntary 
wilful  choice  determined  by  a  moderately 
intelligent  mental  power  whicli  knows  the 
purpose  and  the  physical  effect  of  the  sui- 
cidal act,  even  though  choice  is  dominated 
j  and  ruled  by  a  disordered  mind,  then  there 
is  a  new  and  independent  agency  which 


336 


WORKMEN'S  COMPENSATION. 


breaks  the  chain  of  causation  arising  from  | 
the  injury.     See  McDonald  v.   Snelling,   14 
Allen,  290,  92  Am.  Dec.  768. 

The  Industrial  Accident  Board  was  in  er- 
ror in  adopting  a  ruling,  and  thereby  in- 
structing itself:  "That  the  rule  laid  down 
in  the  Daniels  Case  is  not  the  rule  to  be 
followed  under  the  workmen's  compensa- 
tion act.  In  other  words  the  question  is 
not  whether  the  consequence  is  a  reasonable 
and  proba.ble  one,  but  whether  the  conse- 
quence resulted  from  the  injury." 

No  question  of  negligence  in  its  common- 
law  sense,  or  of  reasonable  and  probable 
consequence,  was  involved  or  discussed  in 
the  Daniels  Case.  That  was  an  action 
brought  under  Pub.  Stat.  chap.  112,  §  213, 
now  Stat.  1906,  chap.  463,  pt.  2,  §  245,  to 
recover  damages  for  conscious  suffering  and 
death  caused  by  failure  on  the  part  of  the 
defendant  railroad  to  give  the  statutory 
signals  of  warning  where  a  railroad  crossed 
a  highway  at  grade.  Under  that  statute 
the  liability  of  the  railroad  is  made  out 
when  the  fact  of  failure  to  give  the  statu- 
tory signals  is  established  (unless  a  special 
defense  prevails). 

The  inquiry  as  to  reasonable  and  prob- 
able consequences  did  not  arise  in  the  Dan- 
iels Case ;  but  it  does  arise  in  actions  at 
common  law  and  under  some  other  statutes 
in  order  to  decide  whether  there  has  been 
negligence.  Even  then  the  question  is  not 
whether  "the  consequence  is  a  reasonable 
and  probable  one,"  but  whether  harm  to 
someone  of  the  same  general  kind  as  that 
sustained  by  the  plaintiff  was  a  reasonable 
and  probable  result  of  the  act  complained 
of,  as  bearing  upon  the  ultimate  question 
whether  there  was  negligence  on  the  part 
of  the  defendant.  Negligence  may  be  found 
even  though  the  particular  result  of  the  act 
may  not  have  been  susceptible  of  being  fore- 
seen. See  Ogden  v.  Aspinwa.ll,  220  Mass. 
100,  107  N.  E.  448,  and  cases  there  collect- 
ed; Larson  v.  Boston  Elev.  R.  Co.  212  Mass. 
262,  98  N.  E.  2048;  Wiemert  v.  Boston 
Elev.  R.  Co.  216  Mass.  598,  104  N.  E.  360; 
Brightman's  Case,  220  Mass.  17,  ante,  321, 
107  N.  E.  527,  8  N.  C.  C.  A.  102. 

Other  instances  where  liability  is  not 
predicated  upon  negligence,  and  where  there- 
fore there  is  no  occasion  to  consider  in  any 
aspect  natural  and  probable  consequences, 
are  actions  to  recover  damages  arising 
from  fires  set  by  locomotive  engines  (Bowen 
v.  Boston  &  A.  R.  Co.  179  Mass.  524,  61 
N.  E.  141)  ;  from  a  vicious  animal  know- 
ingly kept  (Marble  v.  Ross,  124  Mass.  44)  ; 
from  dogs  (Pressey  v.  Wirth,  3  Allen,  191)  ; 
or  from  the  breaking  away  of  impounded 
waters  (Ry lands  v.  Fletcher,  L.  R.  3  H.  L. 
L.R.A.1916A. 


330,  37  L.  J.  Exch  N.  S.  161,  6  Mor.  Min. 
Rep.  129,  1  Eng.  Rul.  Cas.  235).  So  far  aa 
concerns  conduct  of  defendants,  liability 
follows  absolutely  in  such  cases  when  the 
particular  decisive  fact  is  shown  to  exist. 

The  obligation  to  pay  compensation  under 
the  workmen's  compensation  act  equally  is 
absolute  when  the  fact  is  established  that 
the  injury  has  arisen  "out  of  and  in  the 
course  of"  the  employment.  Part  2,  §  1.  It 
is  of  no  significance  whether  the  precise 
physical  harm  was  the  natural  and  proba- 
ble, or  the  abnormal  and  inconceivable,  con- 
sequence of  the  employment.  The  single 
inquiry  is  whether  in  truth  it  did  arise  oilt 
of  and  in  the  course  of  that  employment. 
If  death  ensues,  it  is  immaterial  whether 
that  was  the  reasonable  and  likely  conse- 
quence or  not;  the  only  question  is  whether 
in  fact  death  "results  from  the  injury." 
Part  2,  §  6.  When  that  is  established  as 
the  cause,  then  the  right  to  compensation  is 
made  out.  If  the  connection  between  the 
injury  as  the  cause  and  the  death  as  the 
effect  is  proven,  then  the  dependents  are  en- 
titled to  recover  even  though  such  a  result 
before  that  time  may  never  have  been  heard 
of,  and  might  have  seemed  impossible.  The 
inquiry  relates  solely  to  the  chain  of  causa- 
tion between  the  injury  and  the  death. 
Dunham  v.  Clare  [1902]  2  K.  B.  292,  71 
L.  J.  K.  B.  N.  S.  683,  66  J.  P.  612,  50  Week. 
Rep.  596,  86  L.  T.  N.  S.  751,  18  Times  L.  R. 
645 ;  Ystradowen  Colliery  Co.  v.  Griffiths 
[1909]  2  K.  B.  533,  78  L.  J.  K.  B.  N.  S. 
1044,  100  L.  T.  N.  S.  869,  25  Times  L.  R. 
622.  See  also  Southall  v.  Cheshire  County 
'  News  Co.  5  B.  W.  C.  C.  251;  Malone  v. 
Cayzer  [1908]  S.  C.  479,  1  B.  W.  C.  C.  27, 
45  Scot.  L.  R.  351.  In  deciding  whether 
the  chain  of  causation  between  the  injury 
and  the  death  is  broken  by  the  intervention 
of  some  independent  agency,  the  rule  of 
Daniels  v.  New  York,  N.  H.  &  H.  R.  Co.  183 
Mass.  393,  62  L.R.A.  75],  67  N.  E.  424,  is 
to  be  followed  under  the  workmen's  compen- 
sation act  as  well  as  in  other  cases  to  which 
the  rule  is  applicable.  There  is  no  difference 
between  the  rule  laid  down  in  the  Daniels 
Case  and  that  in  the  English  cases  just 
cited.  But  this  error  in  law  did  not  affect 
the  result  reached  by  the  Industrial  Acci- 
dent Board.  The  decision  of  the  Board 
rests  upon  the  rule  of  the  Daniels  Case,  and 
hence  need  not  be  disturbed. 

What  has  been  said  disposes  of  all  the  re- 
quests for  rulings  presented  by  the  insurer. 
It  does  not  appear  that  the  Board  misdi- 
rected itself  in  any  matter  of  law  material 
to  its  decision  on  the  facts  found. 
Decree  affirmed. 


MILLIKEN  v.  TRAVELERS'  INS.  CO. 


337 


MASSACHUSETTS     SUPREME    JUDI- 
CIAL   COURT. 

CAROLINE   MILLIKEN 

v. 

TRAVELERS'     INSURANCE     COMPANY, 
Appt. 

(216  Mass.  293,  103  N.  E.  898.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  Injury  due  to  lapse 
of  memory. 

Pneumonia  contracted  by  an  employee 
who,  because  of  prior  injuries,  suffers  a 
lapse  of  memory  while  in  charge  of  his 
master's  team,  and,  in  attempting  to  get 


National  Masonic  Acci.  Asso.  127  Iowa,  25, 
102  N.  W.  190;  ^Etna  L.  Ins.  Co.  v.  Dorney, 
68  Ohio  St.  151,  67  N.  E.  254;  Sharpe  v. 
Commercial  Travelers'  Mut.  Acci.  Asso.  139 
Ind.  92,  37  N.  E.  353;  National  Masonic 
Acci.  Asso.  v.  Shryock,  20  C.  C.  A.  3,  36 
U.  S.  App.  658,  73  Fed.  774;  Commercial 
Travelers'  Mut.  Acci.  Asso.  v.  Fulton,  24 
C.  C.  A.  654,  45  U.  S.  App.  578,  79  Fed.  423. 

The  death  of  Milliken  did  not  arise  out 
of  his  employment. 

Armitage  v.  Lancashire  &  Y.  R.  Co. 
[1902]  2  K.  B.  178,  71  L.  J.  K.  B.  N.  S.  778, 
60  J.  P.  613,  86  L.  T.  N.  S.  883,  18  Times 
L.  R.  648 ;  Andrew  v.  Failsworth  Industrial 


the  horses  to  the  stable,  loses  his  way,  wan-  I  Soc-  ^904]  2  K-  B-  32-  73  L.  J.  K.  B.  N.  S. 

j  -  ,.  .  •   *  e  t  t          StC*       T         T\  i  ,  L  i  i          f  n      TTT  1  _         T»  A  f  1          f\  f\      T 

ders   from   the   wagon    into   a   swamp,   and 


suffers  exposure  during  the  night,  is  not 
an  injury  "arising  out  of"  his  employment, 
within  the  meaning  of  a  workmen's  com- 
pensation act 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  S. 

(January   8,    1914.) 

APPEAL  by  the  insurance  company  from 
a  decree  of  the  Superior  Court  for 
Suffolk  County,  awarding  compensation  to 
the  dependent  plaintiff  under  the  workmen's 
compensation  act,  for  the  death  of  her  hus- 
band, in  accordance  with  a  decision  of  the 
Industrial  Accident  Board.  Reversed.. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Walter  I.  Badger,  William 
Harold  Hitchcock,  and  Louis  C.  Doyle, 
for  appellant: 

Milliken  did  not  suffer  a  personal  injury 
within  the  meaning  of  the  workmen's  com- 
pensation act. 

Coe  v.  Fife  Coal  Co.  [1909]  S.  C.  393,  46 
Scot.  L.  R.  328,  2  B.  W.  C.  C.  8;  Clover,  C. 
&  Co.  v.  Hughes  [1910]  A.  C.  242,  79  L.  J. 
K.  B.  N.  S.  470,  102  L.  T.  N.  S.  340,  26 
Times  L.  R.  359,  54  Sol.  Jo.  375,  47  Scot.  L. 
R.  885,  3  B.  W.  C.  C.  275;  Fenton  v.  J. 
Thorley  &  Co.  [1903]  A.  C.  445,  72  L.  J.  K. 
B.  N.  S.  787,  52  Week.  Rep.  81,  89  L.  T.  N. 
S.  314,  19  Times  L.  R.  684. 

Where  the  proximate  cause  of  the  con- 
dition complained  of  is  disease,  there  can  be 
no  recovery  under  a  policy  insuring  against 
bodily  injuries,  even  though  it  is  plain  that 
the  disease  was  accidentally  acquired. 

Clark  v.  Employers'  Liability  Assur.  Co. 
72  Vt.  458,  48  Atl.  639;  White  v.  Standard 
Life  &  Acci.  Ins.  Co.  95  Minn.  77,  103  N. 
W.  735,  884,  5  Ann.  Cas.  83;  Binder  v. 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  applicability  of  compensation  acts 
where  insane  workman  commits  suicide  or 
suffers    personal    injuries,    see    annotation, 
oost,  339. 
L.R.A.1916A.  22 


511,  68  J.  P.  409,  52  Week.  Rep.  451,  90  L. 
T.  N.  S.  611,  20  Times  L.  R.  429 ;  Fitzgerald 
v.  Clarke  [1908]  2  K.  B.  796,  77  L.  J.  K.  B. 
N.  S.  1018,  99  L.  T.  N.  S.  101,  1  B.  W.  C.  C. 
197;  Amys  v.  Barton  [1912]  1  K.  B.  40,  81 
L.  J.  K.  B.  N.  S.  65,  105  L.  T.  N.  S.  619,  28 
Times  L.  R.  29,  5  B.  W.  C.  C.  117;  Butler  v. 
Burton-on-Trent  Union,  106  L.  T.  N.  S.  824, 
5  B.  W.  C.  C.  355 ;  Rodger  v.  Paisley  School 
Bd.  [1912]  S.  C.  584,  49  Scot.  L.  R.  413,  5 
B.  W.  C.  C.  547. 

Milliken's  exposure  and  consequent  death 
did  not  occur  in  the  course  of  his  employ- 
ment. 

McCarthy  v.  Timmins,  178  Mass.  378,  86 
Am.  St.  Rep.  490,  59  N.  E.  1038. 

Mr.  W.   H.   Sullivan  for  appellee. 

Loring,  J.,  delivered  the  opinion  of  the 
court : 

This  is  an  appeal  from  a  decree  of  the 
superior  court,  based  on  a  decision  of  the 
Industrial  Accident  Board,  ordering  the  in- 
surer to  pay  $1,950  for  the  death  of  Frank 
T.  Milliken.  The  facts  found  by  the  board 
were  these : 

Milliken,  at  the  time  of  his  death  in 
October,  1912,  and  for  some  twenty-seven 
years  before  that  time,  had  been  a  driver  in 
the  employ  of  A.  Towle  &  Company,  the  in- 
sured, who  were  teamsters.  Some  four  or 
five  years  before  his  death  Milliken,  in  the 
course  of  his  employment,  fell  from  his 
wagon,  striking  on  his  head.  This  caused, 
inter  alia,  an  impairment  of  memory.  One 
afternoon  in  July,  1912  (three  months  be- 
fore his  death),  Milliken  lost  his  memory 
while  driving  his  employer's  wagon  in 
Boston,  and  for  half  an  hour  was  unable  to 
remember  where  he  was  or  to  identify  the 
streets  in  which  he  was  driving,  although 
they  were  streets  with  which  he  was  "thor- 
oughly familiar."  During  the  day  of 
October  8,  1912,  from  a  similar  failure  of 
memory  Milliken  did  not  call  for  packages, 
as  his  duties  required,  and  reported  (con- 
trary to  the  fact)  that  he  had  not  received 
them  because  they  were  not  ready.  There- 


338 


WORKMEN'S  COMPENSATION. 


upon  he  was  directed  to  drive  his  wagon  to 
his  employer's  stable  in  Charlestown  to  be 
put  up  for  the  night.  Driving  his  wagon  to 
the  stable  for  the  night  was  part  of  Milli- 
ken's  regular  work.  This  order  was  given 
to  Milliken  about  5  o'clock  in  the  afternoon 
at  his  employer's  Boston  office  in  Matthews 
street,  near  Postoffice  square.  "At  some 
place  between  Postoffice  square  and  the 
stable  in  Charlestown  he  was  seized  with 
such  a  loss  of  memory  and  mental  faculties 
that  he  was  unable  to  recognize  streets  and 
places,  and  on  account  of  such  disordered 
mental  condition  he  became  lost  and  unable 
to  direct  the  horse  to  the  stable."  About  11 
o'clock  that  night  Milliken  was  seen  driving 
the  wagon  in  a  private  way  in  Burlington 
and  was  helped  back  to  the  public  highway, 
whereupon  he  drove  away  in  the  direction 
of  Lowell.  At  this  time  Milliken  would  not 
speak.  At  about  6  o'clock  the  following 
morning  Milliken  was  found  lying  in  a 
swamp  in  Woburn  and — with  the  exception 
of  his  head — covered  with  mud  and  water. 
His  hat  was  found  on  the  "adjacent  road" 
some  200  feet  away,  and  the  horse  and 
wagon  were  found  "by  the  side  of  said 
road,  about  half  a  mile  distant,  in  the  direc- 
tion of  Boston."  Milliken  was  taken  to  a 
hospital  at  Woburn,  where  he  died  on 
October  14th,  without  recovering  his 
memory.  He  "spoke  in  a  delirium  only  of 
looking  for  his  horse."  The  cause  of  his 
death  was  pneumonia,  brought  on  by  cold 
and  exposure  while  lying  in  the  swamp. 

The  Industrial  Accident  Board  found: 
"That  the  loss  of  memory  with  which  the 
employee,  Milliken,  was  seized,  was  not  in 
itself  a  fatal  disorder,  and  that  he  would 
not  have  met  his  death  as  he  did  but  for  the 
horse  and  wagon  and  his  effort  to  get  them 
to  the  stable." 

The  dependent's  contention  is  that  Milli- 
ken's  death  was  caused  by  pneumonia 
brought  on  by  his  falling  into  the  swamp 
and  lying  there  all  night;  that,  under  these 
circumstances,  falling  into  the  swamp  and 
lying  there  all  night  was  a  personal  injury 
which  caused  his  death ;  and  for  this  she  re- 
lies on  Alloa  Coal  Co.  v.  Drylie  [1913]  S.  C. 
549,  50  Scot.  L.  R.  350,  1  Scot.  L.  T.  167,  6 
B.  W.  C.  C.  398,  4  N.  C.  C.  A.  899,  and  Kelly 
v.  Auchenlea  Coal  Co.  [1911]  S.  C.  864,  4 
B.  W.  C.  C.  417,  48  Scot.  L.  R.  768. 

The  fact  that  Milliken  "would  not  have 
met  his  death  as  he  did  but  for  the  horse 
and  wagon  and  his  effort  to  get  them  to  the 
stable"  goes  no  farther  than  to  show  that 
the  personal  injury  suffered  by  Milliken 
was  a  personal  injury  "in  the  course  of  his 
employment." 

The  difficulty  in  the  case  arises  from  the 
provision  that  the  personal  injury  must  be 
L.R.A.1916A. 


one  "arising  out  of"  as  well  as  one  "in  the 
course  of  his  employment." 

It  was  held  in  McNicol's  Case,  215  Mass. 
497,  ante,  306,  102  N.  E.  697,  4  N.  C.  C.  A. 
522,  that  the  provision  limiting  the  personal 
injuries  for  which  compensation  is  to  be 
made  to  those  "arising  out  of"  the  em- 
ployee's employment  means  that  the  nature 
and  conditions  of  the  employment  must  be 
such  that  the  personal  injury  which  in  fact 
happened  was  one  likely  to  happen  to  an 
employee  in  that  employment.  In  that  case 
it  was  said  that  there  must  be  a  "causal 
connection"  between  the  employment  and 
the  injury. 

There  is  nothing  in  the  employment  of 
driving  a  wagon  which  makes  it  likely  that 
the  employee  will  alight  from  his  wagon, 
wander  to  and  fall  into  a  swamp,  and  lie 
there  all  night.  The  distinction  between  the 
case  at  bar  and  a  case  within  this  clause  of 
the  act  is  well  brought  out  by  what  is  sug- 
gested by  a  remark  of  the  majority  of  the 
Industrial  Accident  Board.  If  the  horse 
driven  by  Miliken  had  run  away,  and 
Milliken  had  been  thereby  thrown  out  and 
killed,  the  personal  injury  in  fact  suffered 
in  that  case  would  have  been  one  which, 
from  the  nature  of  his  employment,  would 
be  likely  to  arise,  and  so  would  be  one  "aris- 
ing out  of  his  [the  employee's]  employ- 
ment." But,  as  we  have  said,  there  is  noth- 
ing in  the  employment  of  driving  a  wagon 
which  makes  it  likely  that  the  employee 
will  alight  from  his  wagon,  wander  to  and 
fall  into  a  swamp,  and  lie  there  all  night. 
Sneddon  v.  Greenfield  Coal  &  Brick  Co. 
[1910]  S.  C.  362,  3  B.  W.  C.  C.  557,  47  Scot. 
L.  R.  337,  much  relied  on  here  by  the  de- 
pendent, is  another  case  which  brings  out  the 
distinction.  There  a  miner  got  lost  in  the 
underground  ways  of  a  mine  and  was  killed 
by  the  exhaust  steam  from  an  engine  which 
was  not  fenced  off.  See  also  Wicks  v. 
Dowell  &  Co.  [1905]  2  K.  B.  225,  74  L.  J. 
K.  B.  N.  S.  572,  53  Week.  Rep.  515,  92  L. 
T.  N.  S.  677,  21  Times  L.  R.  487,  2  Ann. 
Cas.  732. 

We  find  nothing  in  the  other  cases  relied 
on  by  the  dependent  which  calls  for  notice. 

It  seems  plain  that  if  Milliken's  death 
was  caused  by  a  personal  injury,  it  was  the 
one  which  happened  some  four  or  five  years- 
before  the  occurrence  here  complained  of, 
and  before  the  workmen's  compensation  act 
was  passed.  At  that  time  he  fell  from  his- 
wagon,  and,  striking  on  his  head,  suffered  a& 
a  result  "an  impairment  of  his  memory." 

The  decree  of  the  Superior  Court  ap- 
pealed from  is  reversed,  and  a  decree  should 
be  entered  declaring  that  the  dependent  has- 
no  claim  against  the  insurer. 

So  ordered. 


SUICIDE  OR  INJURY  WHILE  INSANE. 


339 


Annotation — Applicability   of  compensation   act  where   insane   workman 
commits  suicide  or  suffers  personal  injuries. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

The  decisions  in  RE  SPONATSKI  and 
JUILLIKEN  v.  TRAVELERS'  INS.  Co.,  al- 
though differing  upon  the  ultimate  ques- 
tion of  awarding  compensation,  are  not 
conflicting  in  principle.  In  the  former 
case  the  insanity  of  the  workman  was 
found  to  have  been  caused  by  the  injury 
which  he  had  received,  and  consequently 
his  self-inflicted  death  was  properly  con- 
sidered as  the  proximate  result  of  the 
injury.  'In  MILLIKEN  v.  TRAVELERS'  INS. 
Co.,  however,  the  mental  derangement 
from  which  the  workman  suffered  was  in 
no  way  connected  with  his  employment. 
There  was  no  chain  of  causation  what- 
ever. 

The  Scotch  court  of  sessions  has  also 
held  that  death  from  suicide  committed 
while  the  workman  was  insane  as  a  re- 
sult of  the  injury  may  be  found  to  be  due 
to  accident.  Malone  v.  Cayzer  [1908]  S. 


C.  479,  45  Scot.  L.  R.  351,  1  B.  W.  C.  C. 

27. 

But  insanity  cannot  be  inferred  merely 

j  from  the  fact  that  a  workman  who  had 
received  an  injury  to  his  eye,  and  was 
suffering  great  pain,  committed  suicide, 
although  there  was  no  other  reason  ad- 
vanced for  the  act  except  the  injury. 
Grime  v.  Fletcher  [1915]  1  K.  B.  (Eng.) 
734,  31  Times  L.  R.  158,  84  L.  J.  K.  B. 
N.  S.  847,  8  B.  W.  C.  C.  69  [1915]  W.  N. 
43,  59  Sol.  Jo.  233  [1915]  W.  C.  &  Ins. 

I  Rep.  250,  112  L.  T.  N.  S.  840. 

And  it  is  error  for  the  county  court 
judge  to  find  that  a  workman  committed 
suicide  while  insane  as  a  result  of  an  in- 
jury, where  the  workman's  body  was 
found  in  a  canal,  and  there  was  no  evi- 
dence to  show  how  he  came  to  be  in  the 
canal,  and  there  had  been  no  symptoms 
of  a  suicidal  tendency,  although  be  had 
become  depressed  and  irritable  and  rest- 
less ao  a  result  of  the  injury.  Southall 
v.  Cheshire  County  News  Co.  (1912)  5 
B.  W.  C.  C.  (Eng.)  251.  W.  M.  G. 


WISCONSIN  SUPREME  COURT. 

HELENA  HOENIG,  Appt., 

v. 

INDUSTRIAL  COMMISSION  OF  WISCON- 
SIN et  al.,  Respts. 

(159  Wis.  646,  150  N.  W.  996.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  death  by  lightning  — 
liability. 

Death  by  lightning  while  an  employee 
is  upon  a  dam,  performing  the  duties  of  his 
employment,  is  not  within  a  statute  pro- 
viding compensation  in  case  of  death  from 
injury  proximately  caused  by  accident  while 
the  employee  was  performing  services  grow- 
ing out  of  and  incident  to  his  employment, 
where  the  Industrial  Commission  has  found 
upon  substantial  evidence  that  there  was  no 
hazard  incident  to  or  growing  out  of  the 
employment  substantially  different  from 
that  of  ordinary  out-of-door  work  during  a 
thunderstorm. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(February   9,   1915.) 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  liability  under  workmen's  compen- 
sation acts  for  death  or  injuries  of  employ- 
ee by  lightning,  see  annotation,  post,  347. 
L.R.A.1916A. 


APPEAL  by  plaintiff  from  a  judgment  of 
the  Circuit  Court  for  Dane  County,  af- 
firming an  order  of  the  defendant  Commis- 
sion, dismissing  plaintiff's  application  for 
compensation  from  the  defendant  company 
for  the  death  of  her  husband.  Affirmed. 

Statement  by  Kerwin,  J.: 

This  is  an  appeal  from  a  judgment 
affirming  the  findings  and  order  of  the  re- 
spondent Industrial  Commission  of  Wiscon- 
sin, dismissing  the  application  of  the  appel- 
lant for  compensation  from  the  respondent 
Lindauer-O'Connell  Company  by  reason  of 
the  death  of  her  husband,  John  Hoenig. 
John  Hoenig  was  employed  by  the  respond- 
ent Lindauer-O'Connell  Company,  and  while 
so  employed,  and  on  August  8,  1913,  was 
struck  by  lightning  and  killed.  The  ques- 
tion involved  is  whether  the  order  of  the 
Industrial  Commission  should  be  disturbed. 

Mr.  Albert  II.  Krugmeier,  for  appel- 
lant: 

The  defendant  company  was  liable  under 
the  compensation  act  for  an  injury  caused 
by  lightning  to  its  employee  in  the  course 
of  his  employment,  irrespective  of  whether 
the  industry  combined  with  the  elements  in 
producing  the  injury. 

1  Bradbury,  Workmen's  Compensation,  2d 
ed.  pp.  335-338;  Mundt  v.  Sheboygan  &  F. 
du  L.  R.  Co.  31  Wis.  451 ;  Smith  v.  Chicago, 


340 


WORKMEN'S  COMPENSATION. 


M.  &  St.  P.  R.  Co.  124  Wis.  120,  102  N.  W. 
336;  Hoffmann  v.  Milwaukee  Electric  R.  & 
Light  Co.  127  Wis.  76,  106  N.  W.  808;  In- 
ternational Harvester  Co.  v.  Industrial 
Commission,  157  Wis.  167,  147  N.  W.  53,  5 
N.  C.  C.  A.  822. 

Messrs.  W.  C.  Owen,  Attorney  General, 
and  Winfleld  W.  Gilman,  Assistant  At- 
torney General,  for  respondent  Commis- 
sion: 

If  Hoenig's  death  was  purely  accidental, 
and  not  connected  with  his  employment,  ap- 
plicant is  not  entitled  to  compensation. 

Borgnis  v.  Falk  Co.  147  Wis.  327,  37 
L.R.A.(N.S.)  489,  133  N.  W.  209,  3  N.  C. 
€.  A.  649;  Milwaukee  v.  Miller,  154  Wis. 
652,  ante,  1,  144  N.  W.  188,  4  N.  C.  C.  A. 
149,  Ann.  Cas.  1915B,  847;  State  ex  rel. 
Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  v. 
Railroad  Commission,  137  Wis.  80,  117  N. 
W.  846;  Minneapolis,  St.  P.  &  S.  Ste.  M.  R. 
Co.  v.  Industrial  Commission,  153  Wis.  552, 
141  N.  W.  1119,  3  N.  C.  C.  A.  707,  Ann.  Cas. 
1914D,  655;  Rayner  v.  Sligh  Furniture  Co. 
180  Mich.  168,  ante,  22,  146  N.  W.  665,  4 
N.  C.  C.  A.  851;  McNicol's  Case,  215  Mass. 
497,  ante,  306,  102  N.  E.  697,  4  N.  C.  C.  A. 
522;  Milliken's  Case,  216  Mass.  293,  ante, 
337,  103  N.  E.  898,  4  N.  C.  C.  A.  512;  Bryant 
v.  Fissell,  84  N.  J.  L.  72,  86  Atl.  458,  3  N. 
C.  C.  A.  585;  Terlecki  v.  Strauss,  85  N.  J. 
L.  454,  89  Atl.  1023,  4  N.  C.  C.  A.  584. 

Hoenig  was  not,  at  the  time  and  place  of 
injury,  exposed  to  a  hazard  from  lightning 
stroke  peculiar  to  the  industry,  or  substan- 
tially differing  from  the  hazard  from  light- 
ning stroke  of  any  out-of-door  work. 

Kelly  v.  Kerry  County  Council,  42  Ir. 
Law  Times,  23,  1  B.  W.  C.  C.  194;  Kare- 
maker  v.  The  Corsican,  4  B.  W.  C.  C.  295; 
Warner  v.  Couchman  [1911]  1  K.  B.  351, 
80  L.  J.  K.  B.  X.  S.  526,  103  L.  T.  N.  S. 
693,  27  Times  L.  R.  121,  4  B.  W.  C.  C.  32, 
55  Sol.  Jo.  107;  Blakey  v.  Robson,  E.  &  Co. 
5  B.  W.  C.  C.  536,  49  Scot.  L.  R.  254,  [1912] 
W.  C.  Rep.  86,  [1912]  S.  C.  334;  Rodger  v. 
Paisley  School  Board,  5  B.  W.  C.  C.  547,  49 
Scot.  L.  R.  413,  [1912]  W.  C.  Rep.  157, 
[1912]  S.  C.  584;  Craske  v.  Wigan,  101  L. 
T.  N.  S.  6,  2  B.  W.  C.  C.  35,  [1909]  2  K.  B. 
635,  78  L.  J.  K.  B.  N.  S.  994,  25  Times  L. 
R  632,  53  Sol.  Jo.  560. 

The  finding  of  the  Industrial  Commission 
that  Hoenig  was  not  exposed  to  a  hazard 
from  lightning  stroke  peculiar  to  the  in- 
dustry, or  substantially  differing  from  the 
hazard  of  lightning  stroke  of  any  ordinary 
out-of-door  work,  is  final  and  conclusive. 

Davies  v.  Gillespie,  5  B.  W.  C.  C.  64,  105 
L,.  T.  N.  S.  494,  28  Times  L.  R.  6,  56  Sol. 
Jo.  11 ;  Morgan  v.  The  Zenaida,  2  B.  W.  C. 
C.  19,  25  Times  L.  R.  446;  Northwestern 
Iron  Co.  v.  Industrial  Commission,  154  Wis. 
97,  post,  366,  142  N.  W.  271,  Ann.  Cas. 
L.R.A.1916A. 


1915B,  877;  International  Harvester  Co.  v. 
Industrial  Commission,  157  Wis.  167,  147 
N.  W.  53,  5  N.  C.  C.  A.  822. 

Messrs.  Brown,  Praclt,  &  Genricli,  for 
respondent  company: 

The  word  "accident"  is  susceptible  of  dif- 
ferent meanings;  so  that  the  meaning  to  be 
given  to  it  as  used  in  the  compensation 
act  is  to  be  determined  from  the  context  and 
the  general  scope  and  purpose  of  the  act. 

Ullman  v.  Chicago  &  N.  W.  R.  Co.  112 
Wis.  163,  56  L.R.A.  246,  88  Am.  St.  Rep. 
949,  88  N.  W.  41 ;  Dawbarn,  Employers'  Lia- 
bility, p.  99 ;  People  v.  Utica  Ins.  Co.  15 
Johns.  358,  8  Am.  Dec.  251;  Church  of  the 
Holy  Trinity  v.  United  States,  143  U.  S. 
457,'  461,  36  L.  ed.  226,  229,  12  Sup.  Ct. 
Rep.  511 ;  Wisconsin  Industrial  School  v. 
Clark  County,  103  Wis.  651,  79  N.  W.  422; 
Borgnis  v.  Falk  Co.  147  Wis.  377,  37  L.R.A. 
(N.S.)  489,  133  N.  W.  209,  3  N.  C.  C.  A. 
649;  State  v.  Clark,  29  N.  J.  L.  96;  Neacy  v. 
Milwaukee  County,  144  Wis.  217,  128  N. 
W.  1063;  Rice  v.  Ashland  County,  108  Wis. 
189,  84  N.  W.  189. 

An  industrial  accident  is  "something  the 
risk  of  which  might  have  been  contemplated 
by  a  reasonable  person,  when  entering  the 
employment,  as  incidental  to  it." 

Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl. 
458,  3  N.  C.  C.  A.  585. 

The  findings  of  the  Commission  are  con- 
clusive. 

Nekoosa-Edwards  Paper  Co.  v.  Industrial 
Commission,  154  Wis.  105,  post,  348,  141  N. 
W.  3013,  Ann.  Cas.  1915B,  995. 

Kervvin,  J.,  delivered  the  opinion  of  the 
court : 

The  court  below,  in  affirming  the  findings 
of  the  Industrial  Commission,  held  that  the 
workmen's  compensation  act  "limits  com- 
pensation to  those  cases  in  which  the 
accident  grows  out  of  the  hazards  of  indus- 
trial enterprises  and  is  peculiar  to  such  en- 
terprises," and  further  held  that  "an  injured 
employee  is  entitled  to  compensation  when 
the  industry  combines  with  the  elements  in 
producing  an  injury  by  a  lightning  stroke," 
and  further  found  that  it  could  not  be  said 
that  there  was  not  a  substantial  basis  for 
the  finding  in  the  evidence  taken  before  the 
Commission.  We  are  inclined  to  agree  with 
the  learned  court  below  in  its  conclusions 
and  judgment  in  the  case. 

It  is  insisted  by  counsel  for  appellant  that 
there  is  no  basis  for  the  findings  of  the  Com- 
mission. The  Commission  found  that  the 
deceased,  John  Hoenig,  was  in  the  employ  of 
the  respondent  the  Lindauer-O'Connell  Com- 
pany, and  while  performing  services  growing 
out  of  and  incidental  to  his  employment,  at 
work  on  a  dam  on  the  Fox  river  in  Wiscon- 
sin, received  a  stroke  of  lightning,  which  re- 


HOEXIG  v.  INDUSTRIAL  COMMISSION. 


341 


suited  in  his  death ;  that,  at  the  time  and 
place  when  and  where  said  Hoenig  came  to 
his  death,  it  had  been  raining,  and  the  rain 
was  accompanied  by  thunder  and  lightning; 
that  at  said  time  and  place  deceased  was  not 
exposed  to  a  hazard  from  lightning  stroke 
peculiar  to  the  industry,  or  differing  sub- 
tantially  from  hazard  from  lightning  stroke 
of  an  ordinary  outdoor  work;  that  the 
death  of  Hoenig  was  not  proximately  caused 
by  accident,  within  the  meaning  of  chapter 
599,  Laws  of  1913. 

It  is  first  insisted  by  counsel  for  appel- 
lant that  under  the  Wisconsin  compensation 
act  liability  exists  for  an  injury  caused  by 
lightning  to  an  employee  in  the  course  of  his 
employment,  irrespective  of  whether  the  in- 
dustry combines  with  the  elements  in  pro- 
ducing the  injury,  on  the  ground  that  the 
statute  expressly  gives  compensation  where 
three  facts  exist  namely :  ( 1 )  That  the  em- 
ployer and  employee  are  under  the  act;  (2) 
that  the  employee  was  performing  services 
growing  out  of  and  incidental  to  his  employ- 
ment:  and  (3)  that  the  injury  was  proxi- 
mately caused  by  accident,  not  intentionally 
self-inflicted. 

The  contention  of  appellant  is  that  the 
statute  is  plain,  and  that  there  is  no  room 
for  construction ;  that,  where  the  three  facts 
named  exist,  compensation  follows,  as  mat- 
ter of  right,  under  the  act.  The  act  should 
be  construed  in  the  light  of  the  history  of  its 
passage.  Pursuant  to  chapter ,518,  Laws  of 
1909,  a  committee  was  appointed  which  in- 
vestigated and  presented  a  report  to  the  leg- 
islature of  1911.  This  report  tends  to  show 
the  construction  placed  upon  the  act  by  the 
committee,  and  that  it  was  not  intended  to 
include  other  than  industrial  accidents  or 
"hazards  incident  to  the  business."  Minne- 
apolis, St.  P.  &  S.  Ste.  M.  R.  Co.  v.  Indus- 
trial Commission,  153  Wis.  552,  141  N.  W. 
1 119,  3  N.  C.  C.  A.  707,  Ann.  Cas.  1914D,  655. 

It  seems  quite  clear  that  the  injuries  for 
which  compensation  is  to  be  paid,  under  the 
act,  are  such  as  are  incidental  to  and  grow 
out  of  the  employment.  Ibid. ;  Milwaukee  v. 
Miller,  154  Wis'.  652,  ante,  1,  144  N.  W. 
188,  4  N.  C.  C.  A.  149,  Ann.  Cas.  1915B, 
847;  Rayner  v.  Sligh  Furniture  Co.  180 
Mich.  168,  ante,  22,  146  N.  W.  665,  4  N.  C. 
C.  A.  851;  McNicol's  Case,  215  Mass.  497, 
ante,  306,  102  N.  E.  697,  4  N.  C.  C.  A.  522; 
Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl. 
458,  3  N.  C.  C.  A.  585 ;  Kelly  v.  Kerry  Coun- 
ty Council,  42  Ir.  Law  Times,  23,  1  B.  W.  C. 
C.  194. 

The  question,  therefore,  arises  whether 
the  injuries  received  by  Hoenig  were  inci- 
dent to  and  grew  out  of  the  employment. 
This  proposition  turns  upon  the  nature  of 
the  hazard  to  which  deceased  was  exposed 
at  the  time  and  place  of  injury.  Was  he  ex- 
L.R.A.1916A. 


posed  to  a  hazard  from  lightning  stroke  pe- 
culiar to  the  industry  ?  The  Industrial  Com- 
mission held  that  he  was  not,  and  that  the 
exposure  to  hazard  from  lightning  stroke  at 
the  time  and  place  of  injury  was  not  differ- 
ent, substantially,  from  that  of  the  ordinary 
out-of-door  work.  The  court  below  affirmed 
the  findings  of  the  Industrial  Commission. 
True,  the  court  in  its  findings  said  that,  if 
the  case  were  presented  to  it  for  a  finding 
from  the  evidence,  it  would  not  make  the 
finding  which  was  made  by  the  Commission, 
and  further  found  that  a  careful  review  of 
the  evidence  led  the  court  to  conclude  that  it 
could  not  say  that  there  was  not  substantial 
basis  for  the  finding  of  the  Commission  in 
the  evidence  taken  before  it.' 

It  is  well  settled  both  on  principle  and  au- 
thority that  the  findings  of  the  Commission 
should  not  be  disturbed  where  there  is  any 
substantial  basis  for  them  in  the  evidence. 
Northwestern  Iron  Co.  v.  Industrial  Com- 
mission, 154  Wis.  97,  post,  366,  142  N.  W. 
271,  Ann.  Cas.  1915B,  877;  International 
Harvester  Co.  v.  Industrial  Commission,  157 
Wis.  167,  147  N.  W.  53,  5  N.  C.  C.  A.  822: 
Milwaukee  Western  Fuel  Co.  v.  Industrial 
Commission,  159  Wis.  635,  150  N.  W.  998: 
Nekoosa-Edwards  Paper  Co.  v.  Industrial 
Commission,  154  Wis.  105,  post,  348,  141  N. 
W.  1013,  Ann.  Cas.  1915B,  995;  Stat.  1913r 
§  2394-19. 

Counsel  for  appellant  appears  to  rely  with* 
confidence  upon  Andrew  v.  Failsworth  In-- 
dustrial  Soc.  90  L.  T.  N.  S.  611,  [1904]  2: 
K.  B.  32,  73  L.  J.  K.  B.  N.  S.  511,  68  J.. 
P.  409,  52  Week.  Rep.  451,  20  Times  L.  Ri. 
429.  An  examination  of  that  case,  however,, 
will  show  that  it  differs  quite  materially 
in  its  facts  from  the  instant  case.  There 
the  position  of  the  injured  person,  as  shown 
by  the  evidence,  was  much  more  hazardous 
because  of  the  employment  than  ordinarily. 
Moreover,  in  that  case  the  finding  of  the 
county  judge,  awarding  compensation,  was 
affirmed. 

In  the  case  now  before  us  there  was  sub- 
stantial basis  in  the  evidence  for  the  finding 
of  the  Commission  to  the  effect  that  there- 
was  no  hazard  incident  to  or  growing  out  of 
the  employment  substantially  different  from-, 
that  of  ordinary  out-of-door  work  during  a 
thunderstorm  accompanied  by  rain. 

The  Commission  in  its  opinion  said : 
"There  was  testimony  in  this  case  of  an  ex- 
pert nature  for  the  purpose  of  showing  that 
the  employment  of  deceased  at  the  water's- 
edge  was  peculiarly  dangerous  from  expo- 
sure to  lightning.  This  evidence  does  not' 
convince  the  Commission  to  a  moral  certain- 
ty that  the  employment  was  extrahazardous- 
in  this  regard.  It  is  admitted  that  the  ac- 
tion of  lightning  is  extremely  freakish  ;  and;, 
while  it  is  more  or  less  controlled  by.  general 


342 


WORKMEN'S  COMPENSATION. 


law,  there  are  so  many  different  elements 
entering  into  its  control  that  we  do  not 
think  the  evidence  in  this  case  established 
that  the  deceased  was  in  any  position  of 
exceptional  danger  because  of  the  possibili- 
ties of  lightning  stroke." 

Section  2394-19,  Stat.  1913,  provides: 
"The  findings  of  fact  made  by  the  board  act- 
ing within  its  powers  shall,  in  the  absence  of 
fraud,  be  conclusive;  .  .  .  the  same  shall 


be  set  aside  only  upon  the  following 
grounds:  (1)  That  the  board  acted  without 
or  in  excess  of  its  powers.  (2)  That  the 
award  was  procured  by  fraud.  (3)  That  the 
findings  of  fact  by  the  board  do  not  support 
the  award." 

Upon  the  record  in  this  case  we  are  con- 
vinced that  the  judgment  of  the  court  below 
must  be  allirmcd. 


MICHIGAN    SUPREME   COURT. 

KATHERINE  KLAWINSKI 

.  v. 

LAKE  SHORE  &  MICHIGAN  SOUTHERN 
RAILWAY  COMPANY. 

(—  Mich.  — ,  152  N.  W.  213.) 

Master  and  servant  —  death  by  light- 
ning —  workmen's  compensation  act. 

Death  by  lightning  of  a  section  hand  on 
a  railroad,  while  in  a  barn  to  which  he  had 
resorted  while  in  the  ordinary  performance 
of  his  duty,  by  direction  of  his  foreman,  for 
refuge  from  a  storm,  does  not  arise  out  of 
and  in  the  course  of  his  employment,  with- 
in the  meaning  of  a  workmen's  compensa- 
tion act. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  S. 

(April  19,  1915.) 

CERTIORARI  to  the  Industrial  Accident 
Board  to  review  its  decision  affirming 
an  award  by  a  committee  of  arbitration  of 
compensation  under  the  workmen's  compen- 
sation act  for  the  death  of  claimant's  hus- 
band. Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Angell,  Boynton,  McMillan, 
Bodman,  &  Turner,  for  respondent: 

The  death  of  Frank  Klawinski,  for  which 
compensation  is  now  asked  by  his  widow, 
did  not  result  from  "a  personal  injury  aris- 
ing out  of  and  in  the  course  of  his  employ- 
ment," within  the  meaning  of  the  workmen's 
compensation  law,  and  she  is  not  entitled 
to  compensation. 

Kelly  v.  Kerry  County  Council,  42  Ir.  Law 
Times,  23,  1  B.  W.  C.  C.  194;  Warner  v. 
Couchman  [1912]  A.  C.  35,  105  L.  T.  N.  S. 
676,  81  L.  J.  K.  B.  N.  S.  45,  28  Times  L.  R. 
58,  56  Sol.  Jo.  70,  49  Scot.  L.  R.  681,  5  B.  W. 
C.  C.  177;  Karemaker  v.  The  Corsican,  4 
B.  W.  C.  C.  295;  Mitchinson  v.  Day  Bros. 
[1913]  1  K.  B.  603,  82  L.  J.  K.  B.  N.  S. 
421,  108  L.  T.  N.  S.  193,  29  Times  L.  R. 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  liability  under  workmen's  compen- 
sation acts  for  death  or  injuries  of  employee 
by  lightning,  see  annotation,  post,  347. 
L.R.A.1916A. 


267,  57  Sol.  Jo.  300,  6  B.  W.  C.  C.  190; 
Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl. 
458;  Craske  v.  Wigan  [1909]  2  K.  B.  635, 
78  L.  J.  K.  B.  N.  S.  994,  101  L.  T.  N.  S. 
6,  25  Times  L.  R.  632,  53  Sol.  Jo.  560,  2 
B.  W.  C.  C.  35;  McNicol's  Case,  215  Mass. 
497,  ante,  306,  102  N.  E.  697,  4  N.  C.  C.  A. 
522;  Amys  v.  Barton  [1912]  1,  K.  B.  40, 
[1911]  W.  N.  205,  81  L.  J.  K.  B.  N.  S.  65, 
105  L.  T.  N.  S.  619,  28  Times  L.  R.  29,  5 

B.  W.  C.  C.   117. 

Mr.  \V.  Glenn  Cowell,  for  claimant: 
The  death  of  claimant's  decedent  was 
caused  by  "a  personal  injury  arising  out  of 
and  in  the  course  of  his  employment,"  within 
the  meaning  of  the  workmen's  compensation 
law,  which  entitles  her  to  compensation. 

M'Niece  v.  Singer  Sewing  Mach.  Co. 
[1911]  S.  C.  13,  48  Scot.  L.  R.  15,  4  B.  W. 

C.  C.   351;   Pierce  v.  Provident  Clothing  & 
Supply  Co.  [1911]   1  K.  B.  997,  80  L.  J.  K. 
B.  N.  S.  831,  27  Times  L.  R.  299,  55  Sol.  Jo. 
363,  104  L.  T.  N.  S.  473,  4  B.  W.  C.  C.  242; 
Rowland  v.  Wright  [1909]   1  K.  B.  963,  77 
L.  J.  K.  B.  N.  S.  1071,  99  L.  T.  N.  S.  758, 
24  Times  L.  R.  852;   Chitty  v.  Nelson,  126 
L.  T.  Jo.  172,  2  B.  W.  C.  C.  496;  M'Lauch- 
lan  v.  Anderson   [1911]   S.  C.  529,  48  Scot. 
L.   R.   349,   4   B.   W.   C.   C.    376,   Taylor   v. 
Jones,  123  L.  T.  Jo.  553,  1  B.  W.  C.  C.  3; 
Morris   v.    Lambeth,   22    Times    L.    R.    22; 
Birmingham  Rolling  Mill  Co.  v.  Rockhold, 
143  Ala.   115,   42   So.  96;   Jarvis  v.   Hitch, 

-  Ind.  App.  — ,  65  N.  E.  608 ;  Boyd,  Work- 
men's Compensation,  §  480. 

McAlvay,  J.,  delivered  the  opinion  of  the 
court : 

In  its  return  to  a  writ  of  certiorari  in 
this  cause  the  Industrial  Accident  Board 
certifies  as  follows:  "That  at  the  time  of 
the  injury  for  which  compensation  was 
sought  herein,  to  wit,  on  the  15th  day  of 
May,  1913,  respondent  had  accepted  to  be- 
come subject  to  the  terms  of  act  No.  10, 
Public  Acts  of  Special  Session  of  1912,  com- 
monly known  as  the  'workmen's  compensa- 
tion law.'  That  on  the  28th  day  of 
July,  1913,  said  Katherine  Klawinski 
made  application  to  the  board  of  ar- 
bitration of  a  claim  to  compensation 
from  respondent  for  the  death  of  her 
husband,  Frank  Klawinski,  on  the  15th  day 


KLAWINSKI  v.  LAKE  SHORE  &  M.  S.  R.  CO. 


343 


of  May,  1913,  while  in  its  employ.  That  a 
committee  of  arbitration  was  duly  formed 
which,  after  hearing  the  parties,  made  an 
award  that  respondent  pay  to  said  applicant 
the  sum  of  $5.24  per  week  for  a  period  of 
300  weeks.  That  thereafter  an  appeal  was 
taken  by  respondent  from  such  award  to 
said  Board  on  the  ground  that  deceased  did 
not  receive  an  injury  arising  out  of  and  in 
the  course  of  his  employment.  That  on  the 
20th  day  of  November,  1913,  an  order  was 
made  by  said  Board,  affirming  the  award  of 
said  committee.  The  facts  involved  in  this 
cause  appear  in  the  agreed  statement  hereto 
attached.  The  Board  does  certify  that  said 
statement  of  facts  is  correct." 

The  following  is  the  stipulation  adopted 
by  respondent  Board  as  its  finding  of  facts 
in  the  case: 

State  of  Michigan — Before  the  Industrial 
Accident  Board. 

Katherine  Klawinski,  Applicant,  v.  Lake 
Shore  &  Michigan  Southern  Railway 
Company,  Respondent. 

It  is  thereby  stipulated  and  agreed  be- 
tween the  parties  hereto  by  their  respective 
attorneys,  that  the  facts  out  of  which  con- 
troversy in  the  above-entitled  cause  arises, 
and  which  it  is  desired  may  be  made  a  part 
of  the  return  to  the  writ  of  certiorari  here- 
tofore issued  from  the  supreme  court  in  this 
cause  to  said  Industrial  Accident  Board,  are 
as  follows:  Frank  Klawinski,  applicant's 
husband,  was  employed  prior  to  and  on  the 
15th  day  of  May,  1913,  by  respondent  as  a 
section  laborer.  On  said  date  he  was  work- 
ing as  a  member  of  a  section  gang  of  six 
men  on  respondent's  roadway  near  Bronson, 
Michigan.  During  the  afternoon  of  that  day 
a  violent  wind  and  rain  storm  arose.  The 
foreman  of  the  gang  said,  "Boys,  we  better 
get  out  of  the  storm."  There  was  a  barn 
near  by,  where  the  section  gang  had  been  in 
the  habit  of  taking  refuge  from  storms.  The 
assistant  foreman  said,  "Come  and  go  into 
the  barn."  The  foreman  directed  one  of 
the  men,  named  Kolassa,  to  go  for  the  coats, 
and  waited  for  him.  While  he  did  so,  the 
rest  of  the  gang,  including  Klawinski.  went 
to  the  barn,  the  foreman  and  Kolassa  going 
to  a  near-by  tenant  house.  While  in  the 
barn,  and  during  said  storm,  Klawinski  was 
killed  by  a  bolt  of  lightning.  During  the 
time  the  men  were  in  the  barn  no  work  was 
performed.  At  such  time  as  they  had  pre- 
viously gone  in  this  barn  for  shelter,  the 
men  had  been  paid  for  their  time  and  were 
so  paid  on  this  occasion.  The  assistant  fore- 
man was  subject  to  the  authority  of  the  fore- 
man, and  had  charge  of  the  men  during  his 
absence.  It  was  in  the  presence  of  the  fore- 
man that  he  said,  "Come  and  go  into  the 
harn." 
L.R.A.1916A. 


The  only  contention  in  the  case  made  by 
appellant  is  that  the  death  of  Frank  Klawin- 
ski for  which  compensation  is  asked  by  and 
was  granted  to  his  widow,  did  not  result 
from  "a  personal  injury  arising  out  of  and 
in  the  course  of  his  employment,"  and  within 
the  meaning  of  the  workmen's  compensation 
law,  and  therefore  the  Industrial  Accident 
Board  erred  in  affirming  the  award  of  the 
committee  of  arbitration.  The  proposition  is 
fundamental  that  a  claimant  is  entitled  only 
to  an  award  of  compensation  for  "a  personal 
injury  arising  out  of  and  in  the  course  of 
his  employment."  To  determine  whether  the 
injury  in  the  instant  case  is  within  the 
meaning  of  the  law,  and  arose  "out  of  and  in 
the  course  of  his  employment,"  we  must  con- 
sider the  nature  and  character  of  that  em- 
ployment. Decedent  was  employed  at  the 
time  as  a  section  laborer,  one  of  a  section 
gang  of  six  men,  working  upon  defendant's 
roadway  at  the  usual  and  ordinary  work  per- 
formed by  railroad  sectioninen,  in  which  it 
may  be  said,  as  a  general  proposition,  there 
is  no  use  of  or  work  performed  in  connection 
with  electrical  machinery  or  appliances,  nor 
any  unusual  proximity  to  such  machinery  or 
appliances.  There  is  no  doubt  that  it  was 
the  legislative  intent  to  compensate  work- 
men for  injuries  resulting  from  industrial 
accidents,  and  that  such  compensation  is 
charged  against  the  industry  because  it  is 
responsible  for  the  injury. 

As  far  as  the  instant  case  is  concerned 
the  scope  of  the  English  statute  may  be  con- 
sidered identical  with  the  Michigan  work- 
men's compensation  law.  Several  cases  have 
been  passed  upon  by  the  English  courts 
arising  under  the  English  law  where  compen- 
sation was  sought  for  injury  by  lightning, 
and,  except  in  cases  where  the  employment 
necessarily  placed  the  employee  at  the  time 
of  his  injury  in  a  position  subjecting  him  to 
unusual  risk  from  lightning,  compensation 
has  been  denied. 

In  a  case  identical  with  the  instant  case, 
where  a  workman  employed  as  a  road  labor- 
er, picking  stones  and  clearing  out  gutters 
along  a  highway,  during  a  thunderstorm 
was  killed  by  lightning,  the  court  held  that 
the  accident  causing  death  did  not  arise 
out  of  the  workman's  employment.  The 
court  said :  "I  am  unable  to  find  any 
special  or  peculiar  danger  from  lightning 
to  which  these  men  [deceased  and  his  com- 
panions] were  exposed  from  working  on 
the  road.  No  expert  or  other  evidence  was 
offered  to  me  that  their  presence  on  the 
road  involved  any  greater  danger  of  being 
struck  by  lightning  than  if  they  had  been 
working  in  a  field  or  garden  or  a  factory. 
The  antecedent  probability  that  they  would 
be  struck  by  lightning  was  no  greater  in 
their  case  than  it  was  in  the  case  of  any 


344 


WORKMEN'S  COMPENSATION. 


other  person  who  was  within  the  region  over 
which  the  thunderstorm  passed."  Kelly  v. 
Kerry  County  Council,  42  Ir.  Law  Times, 
23,  1  B.  W.  C.  C.  194. 

This  question  has  been  before  the  Indus- 
trial Commission  of  Wisconsin  in  the  case  of 
Lindauer  O'Connel  Co.  v.  Hoenig,  where  the 
widow  of  John  Hoenig,  who  came  to  his 
death  by  a  stroke  of  lightning  while  he  was 
employed  by  the  company  at  work  on  a  dam 
in  the  Fox  river,  taking  planks  out  of  the 
water  above  the  dam,  filed  a  claim  for  com- 
pensation on  account  of  his  death.  Among 
other  things,  the  Commission  found  as  a 
fact  that  "at  the  time  and  place  of  the  in- 
jury to  John  Hoenig  resulting  in  his  death, 
deceased  was  not  exposed  to  a  hazard  from 
lightning  stroke  peculiar  to  the  injury  [in- 
dustry], or  substantially  differing  from  the 
hazard  from  lightning  of  any  other  out-of- 
door  work,"  and,  further,  that  his  death 
"was  not  proximately  caused  by  any  acci- 
dent within  the  meaning  of  the  term  as 
used  in  chapter  599,  Laws  of  Wisconsin 
1913."  In  a  memorandum  opinion  filed  in 
the  case,  the  Commission,  among  other 
things,  said:  "Lightning  stroke  is  not 
popularly  spoken  of  as  an  accident  where 
it  comes  from  the  action  of  the  elements 
without  the  agency  of  man.  W7hen  the  agen- 
cy [industry]  through  the  agency  of  man 
combines  with  the  elements  and  produ- 
ces injury  to  the  employee  by  light- 
ning stroke,  it  may  well  be  said  that  the 
injury  grows  out  of  the  employment  and  is 
accidental.  Such  has  been  the  decision  of 
the  English  courts  under  the  English  com- 
pensation act.  We  are  aware  that  the  lan- 
guage of  the  English  act  differs  from  the 
language  of  our  act,  but  if  we  accept  the 
construction  of  the  legislative  committee 
which  drew  the  act,  then  we  find  the  mean- 
ing of  the  two  acts  in  this  respect  identi- 
cal. Clearly  the  industry  may  be  and  ought 
to  be  charged  with  the  burden  resulting 
from  the  hazards  of  the  industry  itself. 
We  have  no  desire  to  pass  on  the 
question  of  public  policy.  That  function 
is  wholly  within  the  province  of  the  legis- 
lature. We  merely  desire  to  correctly  in- 
terpret the  legislative  intent.  The  legisla- 
tive committee  in  its  report  says  that 
'compensation  shall  be  paid  when  the  in- 
jury grows  out  of  the  employee's  employ- 
ment,— it  makes  no  difference  who  is  to 
blame;  it  is  sufficient  that  the  industry 
caused  the  injury.'  So,  in  the  case  of 
lightning  stroke,  if  we  can  find  as  a  fact 
that  the  injury  grew  out  of  the  employment, 
or  that  the  industry  caused  the  injury, 
then  undoubtedly  compensation  should  be 
paid.  Assuming  the  law  to  provide  com- 
pensation for  industrial  accidents  only, — 
those  growing  out  of  the  employment  and 
L.R.A.1916A. 


caused  by  the  industry, — we  must  approach 
the  consideration  of  each  case  of  injury  by 
lightning  on  the  question  of  fact.  Did  the 
injury  grow  out  of  the  employment,  and 
did  the  industry  cause  the  injury?  The  act 
provides  for  compensation  for  'personal  in- 
juries accidentally  sustained,  .  .  .  where 
the  injury  is  proximately  caused  by  ac- 
cident.' We  are  of  the  opinion  that  this 
language  refers  to  industrial  accidents, — 
those  caused  by  the  industry  and  chargeable 
to  the  industry, — and  does  not  apply  to  in- 
juries resulting  from  those  forces  of  nature 
described  in  the  common  law  as  acts  of 
God,  such  forces  as  are  wholly  uncontrolled 
by  men." 

The  prayer  for  compensation  was  denied, 
and  the  case  dismissed. 

Our  quotations  from  the  foregoing  opin- 
ion are  made  from  a  certified  copy  which 
was  furnished  the  court  by  counsel  for  ap- 
pellant, who  stated  that  they  were  unable 
to  find  that  the  opinions  of  the  Industrial 
Commission  of  Wisconsin  were  officially 
published. 

It  is  our  opinion  that  in  the  instant  case 
claimant's  husband  did  not  come  to  his 
death  as  the  result  of  "a  personal  injury 
arising  out  of  and  in  the  course  of  his  em- 
ployment," within  the  meaning  of  the  work- 
men's compensation  law.  It  is  clear  from 
the  stipulated  facts  that  this  injury  was  in 
no  way  caused  by  or  connected  with  his  em- 
ployment through  any  agency  of  man  which 
combined  with  the  elements  to  produce  the 
injury;  that  plaintiff's  decedent  by  reason 
of  his  employment  was  in  no  way  exposed 
to  injuries  from  lightning  other  than  the- 
community  generally  in  that  locality. 

Under  the  stipulated  facts  in  the  case  the 
Industrial  Accident  Board  was  in  error  in 
affirming  the  award  of  the  committee  of  ar- 
bitration, and  its  decision  and  determina- 
tion are  herebv  reversed  and  set  aside. 


MINNESOTA  SUPREME  COURT. 

STATE  OF  MINNESOTA  EX  REL.  PEO- 
PLE'S COAL  &  ICE  COMPANY,  Plff.  ia 
Certiorari, 

v. 

DISTRICT  COURT  OF  RAMSEY  COUNTY 
et  al. 

(329  Minn.  502,  153  N.  W.  119.) 

Master  and  servant  —  workmen's  com- 
pensation —  death  by  lightning. 

A  driver  for  an  ice  company  was  required 
to  follow  a  fixed  route  in  substantial  dis- 

Headnote  by  DIBELL,  C. 


Note.  —  As   to   application   and   effect   of 


STATE  EX  REL.  PEOPLE'S  COAL  &  I.  CO.  v.  DISTRICT  COURT. 


345 


regard  of  weather  conditions,  though  per- 
mitted to  seek  shelter  in  times  of  necessity. 
When  a  severe  rain  storm,  accompanied  by 
lightning,  was  in  progress,  he  left  his  team 
and  went  to  a  tall  tree  just  within  the  lot 
line,  either  for  protection  or  in  the  perform- 
ance of  his  duties  soliciting  orders.  Light- 
ning struck  the  tree,  and  the  same  bolt 
struck  him,  and  he  was  killed.  It  is  held 
that  the  evidence  sustains  a  finding  that 
the  death  of  the  decedent  was  the  result  of 
an  accident  "arising  out  of"  his  employ- 
ment, within  the  meaning  of  the  workmen's 
compensation  act  (Laws  1913,  chap.  467, 
§  9;  Gen.  Stat.  1913,  §  8203). 
For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8.  . 

(June  4,   1915.) 

CERTIORARI  to  the  District  Court  for 
Ramsey  County  to  review  a  judgment 
confirming  an  award  under  the  workmen's 
compensation  act  for  the  death  of  Sebastian 
Meier.  Affirmed. 

The  facts  are  stated  in  the  Commissioner's 
opinion. 

Messrs.  Barrows,  Stewart,  &  Ordway, 
for  plaintiff  in  certiorari: 

Risks  resulting  from  other  sources  uncon- 
nected with  the  employment  are  not  borne 
by  the  employer. 

Fitzgerald  v.  W.  G.  Clarke  &  Son  [1908] 
2  K.  B.  796,  77  L.  J.  K.  B.  N.  S.  1018,  99 
L.  T.  N.  S.  101. 

Death  from  lightning  did  not  rise  "out 
of"  his  employment. 

Andrew  v.  Failsworth  Industrial  Soc. 
[1904]  2  K.  B.  32,  73  L.  J.  K.  B.  N.  S.  511, 
68  J.  P.  409,  52  Week.  Rep.  451,  90  L.  T. 
N.  S.  611,  20  Times  L.  R.  429;  Kelly  v. 
Kerry  County  Council,  42  Ir.  Law  Times,  23, 
1  B.  W.  C.  C.  194;  Warner  v.  Couchman 
[1911]  1  K.  B.  351,  80  L.  J.  K.  B.  N.  S. 
526,  103  L.  T.  N.  S.  693,  27  Times  L.  R.  121, 
55  Sol.  Jo.  107,  4  B.  W.  C.  C.  32,  1  N.  C.  C. 

A.  51 ;  Karemaker  v.  The  Corsican,  4  B.  W. 
C.    C.    295;    Blakey    v.    Robson,    E.    &    Co. 
[1912]    S.   C.   334,  5   B.   W.   C.   C.   536,   49 
Scot.  L.  R.  254,  [1912]  W.  C.  Rep.  86;  Rod- 
ger v.  Paisley   School   Board    [1912]    S.   C. 
584,  5  B.  W.  C.  C.  547,  49  Scot.  L.  R.  413, 
[1912]    W.   C.   Rep.    157;    Amys   v.   Barton 
[1912]  1  K.  B.  40,  81  L.  J.  K.  B.  N.  S.  65, 
105  L.  T.  N.  S.  619,  28  Times  L.  R.  29,  5 

B.  W.  C.  C.  117;  Bryant  v.  Fissell,  84  1\.  J. 
L.  72,  86  Atl.  458,  3  N.  C.  C.  A.  585;   Mc- 
Nicol's  Case,  215  Mass.  197,  ante,  306,  102 
N.  E.  697,  4  N.  C.  C.  A.  522. 

The  mere  fact  that  an  employee  was  prop- 
erly in  a  certain  place  during  his  employ- 


workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  liability  under  workmen's  compen- 
sation acts  for  death  or  injuries  of  employee 
by  lightning,  see  annotation,  post,  347. 
L.R.A.1916A. 


ment,  and  received  injury  in  that  place,  is 
not  alone  sufficient. 

Craske  v.  Wigan,  2  B.  W.  C.  C.  35,  101 
L.  T.  N.  S.  6,  [1909]  2  K.  B.  635,  78  L.  J. 
K.  B.  N.  S.  994,  25  Times  L.  R.  632,  53  Sol. 
Jo.  560;  Hoenig  v.  Industrial  Commission, 
159  Wis.  646,  ante,  339,  150  N.  W.  996,  8 
N.  C.  C.  A.  192. 

Messrs.  Durment,  Moore,  &  Oppen- 
heimer  and  Frank  C.  Hodgson,  for  de- 
fendant in  certiorari : 

The  question  whether  an  accident  arises 
out  of  the  employment  is  a  question  of  fact 
for  the  trial  court. 

Andrew  v.  Failsworth  Industrial  Soc. 
[1904]  2  K.  B.  32,  73  L.  J.  K.  B.  N.  S.  511, 
68  J.  P.  409,  52  Week.  Rep.  451,  90  L.  T.  N. 
S.  611,  20  Times  L.  R.  429;  Kelly  v.  Kerry 
County  Council,  42  Ir.  Law  Times.  23,  1 

B.  W.  C.  C.  194 ;  Johnson  v.  The  Torrington, 
3  B.  W.  C.  C.  68;  Clover,  C.  &  Co.  v.  Hughes 
[1910]  A.  C.  242,  79  L.  J.  K.  B.  N.  S.  470, 
102   L.   T.   N.  S.  340,  26  Times  L.   R.   359, 
54  Sol.  Jo.  375,  3  B.  W.  C.  C.  275,  47  Scot. 
L.  R.  885;  Davies  v.  Gillespie,  105  L.  T.  N. 
S.  494,  28  Times  L.  R.  6,  56  Sol.  Jo.  11; 
Bryant  v.   Fissell,  84  N.  J.  L.  72,  86  Atl. 
458,  3  N.  C.  C.  A.  585 ;  Rayner  v.  Sligh  Fur- 
niture Co.  180  Mich.  168,  ante,  22,  146  N. 
W.   665,   4  N.  C.   C.  A.  851;    International 
Harvester  Co.  v.  Industrial  Commission,  157 
Wis.  167,  147  N.  W.  53,  5  N.  C.  C.  A.  822; 
Brightman's  Case,  220  Mass.   17,  ante,  321, 
107  N.  E.  527,  8  N.  C.  C.  A.  102. 

It  is  not  necessary  as  a  matter  of  law  for 
the  claimant  to  prove  that  the  employment 
was  the  proximate  cause  of  the  accident  in 
the  sense  in  which  it  is  necessary  to  prove 
proximate  cause  in  the  case  of  a  tort  or  a 
crime. 

Challis  v.  London  &  S.  W.  R.  Co.  [1905] 
2  K.  B.  154,  21  Times  L.  R.  486,  7  W.  C.  C. 
23,  74  L.  J.  K.  B.  N.  S.  569,  53  Week.  Rep. 
613,  93  L.  T.  N.  S.  330;  Rowland  v.  Wright, 
24  Times  L.  R.  852,  77  L.  J.  K.  B.  N.  S. 
1071;  Morgan  v.  The  Zenaida,  25  Times  L. 
R.  446,  2  B.  W.  C.  C.  19;  Nisbet  v.  Rayne 
&  Burn,  3  B.  W.  C.  C.  507,  [1910]  2  K.  B. 
689,  80  L.  J.  K.  B.  N.  S.  84,  103  L.  T. 
N.  S.  178,  26  Times  L.  R.  632,  54  Sol.  Jo. 
719;  Anderson  v.  Balfour,  3  B.  W.  C.  C. 
588,  [1910]  2  I.  R.  497,  44  Ir.  Law  Times, 
168;  Moore  v.  Manchester  Liners  []910]  A. 

C.  498,  79  L.  J.  K.  B.  N,  S.  1175,  103  L.  T. 
N.  S.  226,  26  Times  L.  R.  618,  54  Sol.  Jo. 
703,  3  B.  W.  C.  C.  527;  Davies  v.  Gillespie, 
105  L.  T.  N.  S.  494,  28  Times  L.  R.  6,  56 
Sol.  Jo.  11 ;  Kelly  v.  Trim  Joint  Dist.  School 
[1913]   W.  C.  &  Ins.  Rep.  401,  47  Ir.  Law 
Times,    151,    affirmed    in    House    of    Lords 
[1914]  W.  C.  &  Ins.  Rep.  359,  [1914]  A.  C. 
667,  83  L.  J.  P.  C.  N.  S.  220,  7  B.  W.  C.  C. 
274,  111  L.  T.  X.  S.  305,  [1914]  W.  N.  177, 
30  Times  L.  R.  452;  Martin  v.  J.  Lovibond 


346 


WORKMEN'S  COMPENSATION. 


6  Sons  [1914]  W.  C.  &  Ins.  Rep.  78,  [1914] 
2  K.  B.  227,  83  L.  J.  K.  B.  N.  S.  806,  7 
B.  W.  C.  C.  243,  110  L.  T.  N.  S.  455,  [1914] 
W.  N.  47 ;  Zabriskie  v.  Erie  R.  Co.  85  N.  J. 
L.    157,   88   Atl.   824,   4   N.   C.   C.   A.   778; 
Terlecki  v.  Strauss  &  Co.  85  N.  J.  L.  454, 
89  Atl.   1023,   4  N.   C.   C.   A.  584;    Bright- 
man's  Case,  220  Mass.  17,  ante,  321,  107  N. 
E.  527,  8  N.  C.  C.  A.  102. 

The  courts  have  uniformly  construed  the 
words  "out'  of  employment"  liberally  and 
with  a  view  to  extending  the  scope  of  a 
remedial  statute. 

State  ex  rel.  Virginia  &  R.  Lake  Co.  v. 
District  Ct.  128  Minn.  211,  150  N.  W.  21], 

7  N.  C.  C.  A.  1076. 

Dibell,  C.,  filed  the  following  opinion: 

Certiorari  to  the  district  court  of  Ramsey 
county  to  review  its  judgment  adjudging 
that  Caroline  Newmann  was  entitled  to  com- 
pensation under  the  workmen's  compensa- 
tion act  for  the  death  of  her  son. 

The  deceased  was  employed  by  relator  as 
a  driver  on  one  of  its  ice  routes.  He  drove 
an  open  wagon  and  his  duties  required  him 
to  work  in  all  kinds  of  weather.  It  was 
permissible  to  seek  shelter  from  storms  in 
such  way  as  one  might;  but  the  necessity  of 
prompt  daily  deliveries  required  the  drivers 
to  complete  their  routes  in  substantial  dis- 
regard of  weather  conditions. 

On  the  morning  of  September  1,  1914,  dur- 
ing a  severe  rain  storm,  accompanied  by 
lightning,  the  deceased  was  on  his  usual 
route.  He  left  his  team  in  the  street  and 
went  towards  a  large  elm  tree  standing  just 
within  the  lot  line,  either  for  protection 
from  the  storm,  or  his  way  to  solicit 
orders.  There  was  an  iron  fence  along  the 
lot.  Just  as  he  reached  the  iron  fence  light- 
ning struck  the  tree  and  struck  him,  and 
he  was  killed,  his  body  falling  upon  the 
fence.  It  may  be  mentioned,  though  little 
importance  is  attached  to  it,  that  he  carried 
a  steel  pick  in  a  holster  on  his  left  hip  in 
accordance  with  the  usual  custom.  He  had 
been  working  all  morning  in  the  storm, 
using  an  uncovered  wagon,  and  subject  to 
the  elements. 

The  workmen's  compensation  act,  so  far 
as  here  material,  requires  compensation  to 
be  paid  by  the  employer  "in  every  case  of 
personal  injury  or  death  of  his  employee, 
caused  by  accident,  arising  out  of  and  in 
the  course  of  employment,  .  .  ."  Laws 
1913,  p.  677,  chap.  467,  §  9  (Gen.  Stat.  1913, 
§  8203). 

In  State  ex  rel.  Duluth  Brewing  &  Malt- 
ing Co.  v.  District  Ct.  129  Minn.  176,  151 
N.  W.  912,  we  adverted  to  the  distinction 
drawn  by  the  courts  between  the  statutory 
phrases  "arising  out  of"  and  "in  the  course 
of."  We  did  not  then  deem  it  wise  to  at- 
L.R.A.1916A. 


•  tempt  the  making  of  a  definition  accurately 
distinguishing  the  two  phrases;  and  the 
case  before  us  does  not  call  for  such  dis- 
tinction. We  leave  ourselves  free  to  deter- 
mine the  meaning  of  the  compensation  act, 
and  the  constructions  which  should  be  given 
its  various  provisions  as  litigation  presents 
them.  Counsel  concede  that  the  only  ques- 
tion is  whether  the  death  of  the  decedent 
was  from  an  accident  arising  out  of  his  em- 
ployment, it  being  conceded  that  his  death 
by  lightning  was  an  accident.  They  base 
their  arguments  chiefly  upon  cases  involving 
injury  or  death  by  lightning,  supplemented 
by  cases  illustrating  the  principles  thought 
to  underly  them. 

If  the  deceased  was  exposed  to  injury 
from  lightning  by  reason  of  his  employment, 
something  more  than  the  normal  risk  to' 
which  all  are  subject,  if  his  employment 
necessarily  accentuated  the  natural  hazard 
from  lightning,  and  the  accident  was  natu- 
ral to  the  employment,  though  unexpected 
or  unusual,  then  a  finding  is  sustained  that 
the  accident  from  lightning  was  one  "aris- 
ing out  of  employment."  An  injury,  to  come 
within  the  compensation  act,  need  not  be  an 
anticipated  one;  nor,  in  general,  need  it  be 
one  peculiar  to  the  particular  employment 
in  which  he  is  engaged  at  the  time. 

Only  three  cases  involving  deaths  from 
lightning  are  cited, — an  English,  and  Irish, 
and  an  American  case.  Since  the  submis- 
sion of  the  case  another  American  case, 
Klawinski  v.  Lake  Shore,  &  M.  S.  R.  Co.  - 
Mich.  — ,  ante,  342,  152  N.  W.  213,  has  been 
decided. 

In  Andrew  v.  Failsworth  Industrial  Soc. 
[1904]  2  K.  B.  32,  90  L.  T.  N.  S.  611,  73 
L.  J.  K.  B.  N.  S.  511,  68  J.  P.  409,  52  Week. 
Rep.  451,  20  Times  L.  R.  429,  a  leading  case, 
a  bricklayer  was  killed  by  lightning,  while 
working  on  a  scaffold  some  23  feet  from 
the  ground.  His  position,  under  the  evi- 
dence adduced,  subjected  him  to  peculiar 
danger  and  risk  from  lightning.  A  finding 
that  his  death  arose  out  of  his  employment 
was  sustained. 

In  Kelly  v.  Kerry  County  Council,  42  Ir. 
Law  Times,  23,  1  B.  W.  C.  C.  194,  it  was 
held  that  one  killed  by  lightning  while  work- 
ing on  a  public  road  did  not  come  to  his 
death  from  an  accident  "arising  out  of  his 
employment."  The  court  distinguished  the 
facts  of  the  case  from  those  present  in  the  An- 
drew Case  just  cited,  holding  that  there  was 
present  no  peculiar  risk  or  danger  incident 
to  the  employee's  work  so  that  it  could  be 
said  that  the  accident  arose  from  his  em- 
ployment. No  evidence  was  offered  of  a  pe- 
culiar risk  or  hazard  from  lightning  inci- 
dent to  his  employment. 

The  English  case  and  the  Irish  case  are 
not  regarded  as  inconsistent.  In  the  Scotch 


STATE  EX  REL.  PEOPLE'S  COAL  &  I.  CO.  v.  DISTRICT  COURT.  347 


case  of  Rodger  v.  Paisley  School  Board 
[1912]  S.  C.  584,  the  court,  in  commenting 
upon  them,  tersely  states  the  distinction  in 
this  way:  ''To  be  struck  by  lightning  is  a 
risk  common  to  all  and  independent  of  em- 
ployment, yet  the  circumstances  of  a  par- 
ticular employment  might  make  the  risk  not 
the  general  risk,  but  a  risk  sufficiently  ex- 
ceptional to  justify  its  being  held  that  acci- 
dent from  such  risk  was  an  accident  arising 
out  of  the  employment." 

In  Hoenig  v.  Industrial  Commission,  159 
Wis.  046,  ante,  339,  150  N.  W.  990,  8  N.  C. 
C.  A.  192,  an  employee  was  struck  and  killed 
by  lightning  while  working  on  a  dam.  The 
Industrial  Commission  held  that  his  death 
did  not  arise  out  of  his  employment.  The 
circuit  court  affirmed  its  holding,  saying, 
however,  that  upon  the  same  evidence  it 
would  not  make  a  like  finding,  and  its  hold- 
ing was  sustained  by  the  supreme  court. 
By  the  Wisconsin  statute  the  findings  of 
the  Commission  are  final  upon  questions  of 
fact;  and  by  §  30  [p.  688]  of  the  Minnesota 
act  the  review  by  the  supreme  court  in 
compensation  cases  is  by  certiorari,  and  it 
is  a  review  of  questions  of  law,  and  not  of 
questions  of  fact. 

The  Michigan  case,  Klawinski  v.  Lake 
Shore  &  M.  S.  R.  Co.  supra,  involved  the 
death  of  a  railway  section  hand  killed  by 
lightning  when  in  a  barn  near  the  right 
of  way,  to  which  he  had  gone  for  protection 
from  a  storm.  The  court  cites  the  Irish 
case,  Kelly  v.  Kerry  County  Council,  supra, 


which  it  considers  controlling.  It  cites  no 
other  case,  but  refers  to  the  holding  of  the 
Wisconsin  Industrial  Commission,  affirmed 
in  Hoenig  v.  Industrial  Commission,  supra. 
The  man  was  exposed  to  no  peculiar  danger 
by  the  character  of  his  work.  The  court,  in 
referring  to  cases  under  the  English  law, 
said  that  compensation  had  always  been 
denied  for  injury  by  lightning,  "except  in 
cases  where  the  employment  necessarily 
placed  the  employee  at  the  time  of  his  in- 
jury in  a  position  subjecting  him  to  unusual 
risk  from  lightning." 

The  opinion  of  the  court  was  that  "dece- 
dent, by  reason  of  his  employment,  was  in 
no  way  exposed  to  injuries  by  lightning 
other  than  the  community  generally  in  that 
locality." 

Many  other  cases,  useful  in  arriving  at  a 
conclusion,  are  cited  in  the  very  helpful 
briefs  of  opposing  counsel,  and  in  the  care- 
fully considered  memorandum  of  the  trial 
court.  We  do  not  stop  to  review  them. 
They  are  the  subject  of  editorial  considera- 
tion in  the  monographic  notes  of  the  differ- 
ent series  of  selected  cases  and  in  the  legal 
journals  of  the  period,  and  are  easily  acces- 
sible to  the  profession.  See  1  Bradbury, 
Workmen's  Compensation,  Act,  398-518. 

We  are  of  the  opinion  that  the  evidence 
is  sufficient  to  sustain  a  finding  that  the  ac- 
cident to  the  decedent  resulting  in  his  death 
was  one  "arising  out  of"  his  employment. 

Judgment  affirmed. 


Annotation — Compensation   for  injury  by  lightning. 


The  foregoing  decisions  in  HOENIG  v. 
INDUSTRIAL  COMMISSION,  KLAWINSKI  v. 
LAKE  SHORE  &  M.  S.  R.  Co.,  and  STATE 
EX  REL.  PEOPLE'S  COAL  &  ICE  Co.  v.  DIS- 
TRICT CT.,  together  with  Kelly  v.  Kerry 
County  Council  (1908)  42  Ir.  Law  Times, 
23,  1  B.  W.  C.  C.  194,  and  Andrew  v. 
Failsworth  Industrial  Soc.  [1904]  2  K. 
B.  (Eng.)  32,  90  L.  T.  N.  S.  611,  73  L.  J. 
K.  B.  N.  S.  511,  68  J.  P.  409,  52  Week. 
Rep.  451,  20  Times  L.  R.  429  (both  of 
which  are  sufficiently  set  out  in  the  fore- 
going opinions),  are  the  only  cases  which 
have  passed  upon  this  interesting  ques- 
tion. 

The  printed  decisions  leave  little  to  be 
said  upon  the  subject. 

It  may  be  noted  that  the  English,  Irish, 
Wisconsin,  and  Minnesota  courts  ap- 
proved the  findings  of  the  arbitrator  or 
Commission  passing  upon  the  facts,  the 
English  and  Minnesota  courts  sustaining 
an  award  of  compensation,  and  the  Irish 
and  Wisconsin  courts  sustaining  the  find- 
ing that  no  compensation  was  recover- 
able, although  it  is  to  be  noticed  that  the 
T..R.A.1916A. 


Wisconsin  court  stated  that  the  court  be- 
low in  its  findings  had  said  that  if  the 
case  were  presented  to  it  for  a  finding 
from  the  evidence,  it  would  not  make  the 
finding  which  was  made  by  the  Commis- 
sion. 

On  the  other  hand,  the  Michigan  court 
reversed  the  award  of  compensation 
made  by  the  Commission,  apparently  tak- 
ing the  view  that  the  question  was  not 
one  of  fact,  but  that,  as  a  matter  of  law, 
a  workman  injured  by  lightning  does  not 
suffer  injury  arising  out  of  and  in  the 
course  of  his  employment.  Possibly  the 
court  did  not  intend  to  take  this  position, 
but  the  language  used  would  seem  to  in- 
dicate it. 

The  language  of  the  appellate  division 
of  the  supreme  court  of  New  York  in 
Moore  v.  Lehigh  Valley  R.  Co.  (1915) 
169  App.  Div.  177,  154  N.  Y.  Supp.  620, 
supports  the  conclusions  reached  by  the 
Minnesota  court,  and  is  in  direct  conflict 
with  the  decision  in  the  Michigan  case. 
The  workman  in  this  case  was  a  lineman, 
and  sought  shelter  during  a  storm  under 


348 


WORKMEN'S  COMPENSATION. 


cars  standing  upon  a  switch  near  by  his 
place  of  work.  It  was  not  the  custom  of 
the  defendant  to  furnish  shelter  for  its 
linemen  in  the  event  of  sudden  storms, 
and  there  was  no  rule  of  the  defendant 
as  to  what  the  men  were  to  do  in  such 
contingency,  but  each  man  was  supposed 
to  find  shelter  wherever  he  could.  The 
defendant  was  not  accustomed  to  make 
any  deductions  in  the  wages  of  its  line- 
men by  reason  of  sudden  storms  inter- 
fering with  the  work,  and  the  defendant 
made  no  such  deductions  upon  this  oc- 
casion. Claimant  and  several  of  the  oth- 
er workmen  stood  under  a  tree  until  it 
no  longer  furnished  protection,  when 
some  of  the  men  went  into  a  paper  mill 
near  by  and,  there  being  no  more  room 
there,  and  apparently  no  other  available 
shelter,  the  claimant  and  two  other 
workmen  found  shelter  under  the  cars 
standing  on  a  switch,  and  while  there 
the  cars  were  moved  by  an  engine  be- 
longing to  another  railroad  company,  and 
the  claimant  was  injured.  In  affirming 
an  award  of  compensation  for  the  in- 
juries thus  received,  the  court  said: 
"That  the  injury  was  sustained  by 
claimant  during  the  course,  that  is,  the 
period  or  time  or  extent,  of  employment 
is  not  seriously  disputed  by  the  defend- 
ant; but  the  defendant  strenuously  con- 
tends that  the  injury  did  not  arise  out 
of  the  employment.  That  the  injuries 
occurred  during  the  working  hours,  which 
were  continuous;  that  it  was  customary 
for  the  defendant's  linemen  to  cease 
work  and  obtain  shelter  during  sudden 
storms,  and  that  no  deduction  was  made 


from  the  ordinary  daily  wages  paid  the 
workmen  by  reason  thereof,  is  conceded. 
It  was  not  only  customary  that  the 
claimant  should  seek  shelter  from  the 
storm,  but  doing  so  was  not  a  remote, 
but  a  necessary  and  unquestionably  fre- 
quent incident  of  his  employment  during 
the  summer  months.  Had  he  taken  shel- 
ter in  the  paper  mill,  and  the  roof 
fallen  in,  or  the  floor  given  way  and  he 
had  been  accidentally  injured,  he  would 
have  been  entitled  to  the  benefit  of  the 
workmen's  compensation  law.  Whether 
a  place  in  a  stone  crusher  being  operated 
by  machinery,  or  under  a  car  standing 
upon  a  switch,  was  the  safer  place,  does 
not  appear.  The  four  linemen  chose 
places  under  the  cars.  However,  as- 
suming that  the  place  under  the  car 
was  the  more  dangerous,  the  fact  that  the 
plaintiff's  judgment  led  him  to  choope  it, 
and  that  he  was  injured  there,  does  not 
bar  him  from  the 'operation  of  the  act. 
Contributory  negligence  furnishes  no 
grounds  of  defense.  .  .  .  The  act  of 
seeking  and  obtaining  shelter  arose  out 
of,  that  is,  within  the  scope  or  sphere  of 
his  employment,  and  was  a  necessary  ad- 
junct and  an  incident  to  his  engaging 
in  and  continuing  such  employment. 
.  Obtaining  shelter  from  a  vio- 
lent storm  in  order  that  he  might  be  able 
to  resume  work  when  the  storm  was 
over  was  not  only  necessary  to  the  pres- 
ervation of  the  claimant's  health  and 
perhaps  his  life,  but  was  incident  to  the 
claimant's  work,  and  was  an  act  promot- 
ing the  business  of  the  master." 

W.  M.  G. 


WISCONSIN  SUPREME  COURT. 

NEKOOSA-EDWARDS  PAPER  COMPANY, 

Respt., 

v. 

INDUSTRIAL  COMMISSION  OF  WISCON- 
SIN et  al.,  Appts. 

(154  Wis.  ]05,  341  N.  W.  1013.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  injury  due  to  intoxi- 
cation —  liability. 

1.  That  injury  to  an  employee  was  proxi- 
mately  caused  by  his  voluntary  intoxication 
does  not  relieve  the  employer  from  liability 
therefor  under  a  statute  making  him  liable 


Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  liability  for  compensation  where 
injured  workman  was  intoxicated  at  the 
time  of  the  injury,  see  annotation,  post,  351. 
L.R.A.1916A. 


for  injury  proximately  caused  by  accident, 

and  not  by  wilful  misconduct. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  finding  by  Commission  —  con- 

clusiveness. 

2.  A  finding  by  the  Commission  under  the 
workmen's  compensation  act  that,  although 
an  injury  to  an  employee  was  due  to  his  in- 
toxication, it  was  not  caused  by  his  wilful 
misconduct  so  as  to  relieve  the  employer 
from  liability  under  the  statute,  cannot  be 
disturbed  by  the  court  where  it  has  no  au- 
thority to  review  the  evidence. 
For  other  cases,  see  Courts,  I.  c,  in  Dig. 

1-52  N.  8: 

(Marshall,  Barnes,  and  Vinje,  JJ.,  dissent.) 
(May  31,  1913.) 

APPEAL  by  defendants  from  a  judgment 
of  the  Circuit  Court  for  Dane  County 
in   plaintiff's  favor  in   a   proceeding  to  re- 


NEKOOSA-EDWARDS  PAPER  CO.  v.  INDUSTRIAL  COMMISSION. 


349 


view  an  award  of  the  Industrial  Commis- 
sion for  death  of  one  of  plaintiff's  employees. 
Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  W.  C.  Owen,  Attorney  General, 
and  Byron  H.  Stebbins,  Assistant  Attor- 
ney General,  for  appellants: 

The  expression  "wilful  misconduct"  had, 
prior  to  the  enactment  of  the  compensation 
act,  acquired  a  fixed  meaning  in  Wisconsin 
law. 

That  meaning  excludes  any  degree  of  neg- 
ligence, and  includes  only  wanton,  intention- 
al acts  or  conduct, — those  in  which  there 
is  "intent  actual  or  constructive,  to  injure." 

Rideout  v.  Winnebago  Traction  Co.  123 
Wis.  297,  69  L.R.A.  601,  101  N.  W.  672,  17 
Am.  Neg.  Rep.  400;  Astin  v.  Chicago,  M. 
&  St.  P.  R.  Co.  143  Wis.  477,  31  L.R.A. 
(N.S.)  158,  128  N.  W.  265;  Fox  v.  Chicago, 
St.  P.  M.  &  O.  R.  Co.  147  Wis.  310,  133  N. 
W.  19 ;  Watermelen  v.  Fox  River  Electric 
R.  &  P.  Co.  110  Wis.  153,  85  N.  W.  663; 
McClellan  v.  Chippewa  Valley  Electric  R 
Co.  110  Wis.  326,  85  N.  W.'  1018;  Bolin 
v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  108  Wis. 
333,  81  Am.  St.  Rep.  911,  84  N.  W.  446,  9 
Am.  Neg.  Rep.  209;  Decker  v.  McSorley, 
116  Wis.  643,  93  N.  W.  808,  13  Am.  Neg. 
Rep.  631;  Haverlund  v.  Chicago,  St.  P.  M. 
&  O.  R.  Co.  143  Wis.  415,  128  N.  W.  273; 
Com.  v.  Kneeland,  20  Pick.  206;  Potter  v. 
United  States,  155  U.  S.  438,  39  L.  ed.  214, 
15  Sup.  Ct.  Rep.  144;  Williams  v.  People, 
26  Colo.  272,  57  Pac.  701 ;  Huff  v.  Chicago, 
I.  &  I.  R.  Co.  24  Ind.  App.  492,  79  Am.  St. 
Rep.  274,  56  N.  E.  932;  State  v.  McAloon, 
142  Wis.  72,  124  N.  W.  1067;  State  v.  Pres- 
ton, 34  Wis.  675;  Brown  v.  State,  137  Wis. 
543,  119  N.  W.  338;  Krom  v.  Antigo  Gas 
Co.  154  Wis.  528,  140  N.  W.  41;  Cohn  v. 
Neeves,  40  Wis.  393;  Schumacher  v.  Falter, 
113  Wis.  563,  89  N.  W.  485;  Johnson  v. 
Huber,  117  Wis.  58,  93  N.  W.  826;  Smith 
v.  Cutler,  10  Wend.  589,  25  Am.  Dec.  580; 
Citizens'  Ins.  Co.  v.  Marsh,  41  Pa.  386. 

The  term  "wilful  misconduct"  is  used  in 
the  compensation  act  with  the  meaning  it 
had  previously  acquired  in  Wisconsin  law. 

Borgnis  v.  Falk  Co.  147  Wis.  327,  37 
L.R.A.  (N.S.)  489,  133  N.  W.  209,  3  N.  C.  C. 
A.  649;  Schneider  v.  Provident  L.  Ins.  Co. 
24  Wis.  28,  1  Am.  Rep.  157,  7  Am.  Neg. 
Cas.  174;  Ullman  v.  Chicago  &  N.  W.  R. 
Co.  112  Wis.  150,  56  L.R.A.  246,  88  Am. 
St.  Rep.  949,  88  N.  W.  41 ;  Ketchum  v.  Chi- 
cago, St.  P.  M.  &  O.  R.  Co.  150  Wis.  211, 
136  N.  W.  634. 

Intoxication  proximately  causing  an  in- 
jury is  not  "wilful  misconduct,"  as  a  mat- 
ter of  law. 

Meracle  v.  Down,  64  Wis.  323,  25  N.  W. 
412;  Rhyner  v.  Menasha,  107  Wis.  201,  83 
N.  W.  303,  97  Wis.  523,  73  N.  W.  41 ;  Ward 
L.R.A.1916A. 


v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  85  Wis. 
601,  55  N.  W.  771;  Bolin  v.  Chicago,  St. 
P.  M.  &  0.  R.  Co.  108  Wis.  333,  81  Am. 
St.  Rep.  911,  84  N.  W.  446,  9  Am.  Neg. 
Rep.  209;  Gould  v.  Merrill  R.  &  Lighting 
Co.  139  Wis.  433,  121  N.  W.  161. 

Smith's  intoxication  did  not  constitute 
"wilful  misconduct." 

Wilson  v.  Chippewa  Valley  Electric  R.  Co. 
120  Wis.  636,  66  L.R.A.  912,  98  N.  W.  536; 
Schneider  v.  Provident  L.  Ins.  Co.  24  Wis. 
28,  1  Am.  Rep.  157,  7  Am.  Neg.  Cas.  174. 

Mr.  W.  E.  Wheelan,  also  for  appellants. 

Messrs.  Brown,  Pradt,  &  Genricli,  for 
respondent : 

Intoxication  is  misconduct. 

17  Am.  &  Eng.  Enc.  Law,  403,  404;  State 
v.  Kraemer,  49  La.  Ann.  774,  62  Am.  St. 
Rep.  664,  22  So.  254. 

The  misconduct  was  wilful. 

Palmer  v.  Chicago,  St.  L.  &  P.  R.  Co.  112 
Ind.  250,  14  N.  E.  73;  Brown  v.  State,  137 
Wis.  543,  119  N.  W.  338;  State  v.  Smith, 
52  Wis.  136,  8  N.  W.  870;  Cincinnati,  T. 
St.  L.  &  N.  R.  Co.  v.  Cooper,  120  Ind.  469, 
6  L.R.A.  241,  16  Am.  St.  Rep.  336,  22  N.  E. 
340,  3  Am.  Neg.  Cas.  251 ;  Boyd,  Workmen's 
Compensation,  §  468;  Bradley  v.  Salt  Un- 
ion, 9  W.  C.  C.  32,  122  L.  T.  Jo.  302; 
M'Groarty  v.  John  Brown  Co.  43  Scot.  L. 
R.  598. 

Timlin,  J.,  delivered  the  opinion  of  the 
court: 

On  January  23,  1913,  the  Industrial  Com- 
mission made  an  award  directing  that  the 
respondent  pay  to  Mittie  Smith  the  sum 
of  $2,040  on  account  of  the  death  of  her 
husband,  Pat  Smith,  while  in  the  employ- 
ment of  respondent.  March  24,  1913,  in  an 
action  brought  for  that  purpose,  the  circuit 
court  for  Dane  county  set  aside  this  award 
on  the  ground  that  the  Industrial  Commis- 
sion acted  in  excess  of  its  powers  in  find- 
ing that  the  death  of  Pat  Smith  was  not 
caused  by  wilful  misconduct.  The  finding 
of  the  Commission  on  this  point  was  as  fol- 
lows: "The  death  of  Pat  Smith  was  proxi- 
mately caused  by  accident,  and  was  not 
caused  by  wilful  misconduct;  that  at  the 
time  of  such  accident  Pat  Smith  was  in  an 
intoxicated  condition  which  proximately 
caused  the  accident." 

The  statute,  §  2394—4,  provides  that 
"liability  for  the  compensation  hereinafter 
provided  for,  in  lieu  of  any  other  liability 
whatsoever,  shall  exist  against  an  employ 
er  for  any  personal  injury  accidentally  sus- 
tained by  his  employee,  and  for  his  death, 
if  the  injury  shall  proximately  cause  death, 
in  those  cases  where  the  following  condi- 
tions of  compensation  concur:  .  .  .  (3) 
Where  the  injury  is  proximately  caused  by 
accident.,  and  is  not  so  caused  bv  wilful  mis- 


350 


WORKMEN'S  COMPENSATION. 


conduct."  Section  2394 — 19 :  "The  findings 
of  fact  made  by  the  Board  acting  within 
its  powers  shall,  in  the  absence  of  fraud,  be 
conclusive;  .  .  .  the  same  shall  be  set 
aside  only  upon  the  following  grounds: 
( 1 )  That  the  Board  acted  without  or  in  ex- 
cess of  its  powers.  (2)  That  the  award  was 
procured  by  fraud.  (3)  That  the  findings 
of  fact  by  the  Board  do  not  support  the 
award." 

It  is  quite  possible  for  a  person  to  be  in 
an  intoxicated  condition  which  condition 
proximately  caused  the  accident  which  prox- 
imately  caused  the  death,  and  yet  not  be 
guilty  of  wilful  misconduct.  The  drinking 
of  intoxicating  liquor  is  wilful  in  the  sense 
of  intentional,  but  the  mere  fact  of  drink- 
ing is  not  misconduct.  By  §  1561,  Stat., 
any  person  found  in  any  public  place  in 
such  a  state  of  intoxication  as  to  disturb 
others,  or  unable  by  reason  of  his  condition 
to  care  for  his  own  safety  or  for  the  safety 
of  others,  is  guilty  of  a  misdemeanor.  This 
is  misconduct,  and  if  one  intentionally  put 
himself  in  this  condition  he  might  be  said 
to  be  guilty  of  wilful  misconduct.  But  there 
are  many  cases  where,  although  the  drink- 
ing is  intentional,  the  intoxication  is  not, 
as  for  instance  where  one  by  reason  of 
fatigue,  hunger,  sickness,  or  some  abnormal 
condition,  becomes  intoxicated  in  conse- 
quence of  imbibing  a  quantity  of  liquor 
which  ordinarily  would  not  so  affect  him. 
While  intoxication  in  such  case  to  the  de- 
gree specified  might  be  a  misdemeanor  under 
the  statute  quoted,  it  is  not  necessarily  wil- 
ful misconduct  within  the  compensation  act. 
The  intoxication  might  under  such  circum- 
stances be  the  proximate  cause  of  an  acci- 
dent resulting  in  injury  or  death,  and  yet 
not  have  reached  that  degree  specified  in 
this  statute,  as  in  case  where  it  produced 
mere  drowsiness. 

There  was  evidence  in  the  instant  case 
that  deceased  was  slightly  intoxicated,  that 
he  drove  out  of  the  clay  pit  standing  upon 
his  load,  that  he  was  perfectly  able  to  take 
care  of  himself  and  drive  his  team  when 
last  seen  alive.  There  was,  therefore,  room 
to  find  upon  the  evidence  not  only  with  re- 
spect to  the  degree  of  intoxication,  but  that 
there  was  no  intention  or  purpose  to  put 
himself  in  a  dangerous  or  helpless  condi- 
tion of  intoxication.  The  Industrial  Com- 
mission has  jurisdiction  to  pass  on  these 
very  questions,  and  their  finding  above  re- 
ferred to  does  determine  these  questions.  It 
finds  that  Smith  was  in  an  intoxicated  con- 
dition which  proximately  caused  the  acci- 
dent, but  that  the  accident  was  not  caused 
by  wilful  misconduct.  This  means  that  he 
did  not  wilfully  bring  upon  himself  such 
degree  of  intoxication. 

If  we  were  authorized  to  review  the  evi- 
L.R.A.1916A. 


dence  we  might  come  to  a  different  conclu- 
sion. But  the  statute  is  mandatory  that 
the  award  shall  not  be  set  aside  on  such 
ground.  The  Industrial  Board  has  jurisdic- 
tion to  decide  whether  or  not  the  intoxica- 
tion which  caused  the  death  or  injury  was 
wilful,  consequently  it  did  not  act  in  excess 
of  its  powers  in  deciding  the  negative  in 
the  instant  case.  There  is  no  claim  that 
the  award  was  procured  by  fraud,  and  the 
findings  of  fact  support  the  award.  Hence, 
without  reaching  the  interesting  questions 
put  forward  in  the  briefs  of  counsel,  we  re- 
verse the  judgment  of  the  circuit  court  and 
direct  that  the  award  of  the  Industrial  Com- 
mission be  affirmed. 

Judgment  reversed,  and  the  cause  re- 
manded to  the  Circuit  Court  with  directions 
to  affirm  the  award  of  the  Industrial  Com- 
mission. 

Barnes,  J.,  dissenting: 

The  plain  unvarnished  tale  in  this  case  ia 
that  Smith,  an  habitual  toper,  left  his  work, 
went  to  a  saloon  some  distance  from  his 
place  of  employment,  got  a  partial  "jag"  on, 
started  back  with  a  bottle  of  whisky,  and 
got  so  drunk  that  thereafter,  while  he  was 
driving  his  team  over  a  smooth  road,  he 
fell  off  the  wagon  and  broke  his  neck.  There 
is  no  suggestion  that  the  whisky  was  inject- 
ed into  him  by  force  or  by  stealth  or  artifice. 
He  bought  it  himself  and  drank  it  alone. 
It  was  an  offense  under  the  law  of  Wiscon- 
sin for  him  to  get  so  drunk  that  he  could 
not  provide  for  his  own  safety  or  the  safe- 
ty of  others,  for  which  he  might  have  been 
punished  had  he  survived.  Of  course,  if  the 
act  of  drinking  was  accidental  or  automatic, 
or  a  mere  mechanical  exercise  unconsciously 
performed,  then  intent  would  be  lacking. 
But  there  is  neither  finding  nor  evidence 
that  such  was  the  fact.  The  deceased  was 
a  seasoned  veteran,  having  a  penchant  for 
getting  drunk,  who  from  his  long  experi- 
ence must  have  known  and  appreciated  his 
capacity.  The  Commission  did  not  find  that 
the  deceased  got  drunk  by  accident.  There 
was  no  evidence  in  the  case  to  warrant  any 
such  finding.  It  did  not  award  damages  on 
any  such  theory.  It  plainly  says  so  in  its 
decision.  After  holding  that  the  claimant 
was  drunk  at  the  time  he  fell  off  the  wagon, 
and  that  the  drunkenness  caused  his  death, 
it  says:  "The  question  we  have  to  decide 
is  whether  or  not  such  intoxication  is  a  de- 
fense against  compensation."  And  in  con- 
clusion the  Commission  says:  "If  the  leg- 
islature had  so  intended,  we  believe  that  it 
would  have  specifically  so  provided  in  the 
act."  The  court  holds  that  if  the  claimant 
got  drunk  intentionally,  that  would  be  wil- 
ful misconduct  within  the  meaning  of  the 
statute.  The  Commission  held  that  it  would 


NEKOOSA-EDWARDS  PAPER  CO.  v.  INDUSTRIAL  COMMISSION. 


351 


not  be,  as  I  read  the  findings  and  decision. 
It  is  apparent  that  if  the  Commission  con- 
strued the  law  as  does  the  court,  it  would 
have  denied  recovery.  This  court  sustains 
the  conclusion  reached  by  the  Commission 
in  a  curious  manner.  It  in  effect  says  that 
the  Commission  found  that  there  was  no 
wilful  misconduct.  Under  some  circum- 
stances drunkenness  would  not  be  wilful 
misconduct.  Ergo  the  Commission  must  have 
found  that  the  exculpating  circumstances 
existed,  and  its  finding  in  this  behalf  is  con- 
clusive on  the  court. 

It  was  not  found  that  the  deceased  got 
drunk  on  an  unusually  small  allowance  of 
liquor  because  of  sickness,  hunger,  or  any 
other  reason.  Such  a  finding  would  totally 
lack  support  in  the  evidence.  Where  a  par- 
ty accustomed  to  the  use  of  liquor  drinks 
it  until  he  gets  drunk,  the  presumption  is 
that  he  intended  to  do  just  what  he  did  do. 
It  was  for  the  claimant  to  show  by  some 


facts  or  circumstances  that  for  some  rea- 
son or  other  the  deceased  drank  less  liquor 
tlian  was  ordinarily  necessary  to  produce 
stupefaction  in  the  instant  case.  No  such 
evidence  was  produced.  I  think  the  circuit 
court  was  clearly  right  in  holding  that 
there  could  be  no  recovery,  and  that  the 
Commission  would  have  reached  the  same 
conclusion  had  it  construed  the  law  as  the 
circuit  court  did  and  as  this  court  does. 
The  judgment  of  the  court  is  based  on  a 
finding  of  fact  which  the  Commission  did 
not  make,  to  wit,  that  the  deceased  did  not 
intend  to  get  drunk.  What  the  Commission 
in  reality  concluded  was  that  intention  was 
immaterial  because  an  allowance  might  be 
made  for  an  injury  resulting  from  inten- 
tional intoxication. 

Marshall  and  Vinje,  JJ.,  concur  in  the 
foregoing  opinion  of  Barnes,  J. 


Annotation — Recovery  of  compensation  where  injured  workman  was  in- 
toxicated at  the  time  of  the  injury. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

There  appears  to  be  no  American  de- 
cision other  than  NEKOOSA-EDWARDS  PA- 
PER Co.  v.  INDUSTRIAL  COMMISSION  which 
passes  upon  the  question  whether  or  not 
compensation  is  recoverable  where  the 
injured  workman  was  intoxicated  at  the 
time  of  his  injury. 

In  some  early  decisions  under  the  Eng- 
lish act  it  has  been  held  that  intoxication 
is  "serious  and  wilful  misconduct."  Bur- 
rell  v.  Avis  (1898;  C.  C.)  106  L.  T.  Jo. 
(Eng.)  61,  1  W.  C.  C.  129;  M'Groarty  v. 
Brown  (1906)  8  Sc.  Sess.  Cas.  5th  series 
(Scot.)  809. 

Under  the  English  act  of  1906  "serious 
and  wilful  misconduct"  does  not  prevent 
a  recovery  of  compensation  if  the  injury 
results  in  death  or  in  serious  permanent 
disablement;  but,  even  under  this  act, 
the  question  still  remains  whether  or  not 
an  injury  received  by  a  workman  while 
he  is  intoxicated  arises  "out  of  and  in 
the  course  of"  his  employment. 

In  the  following  cases,  under  the  cir- 
cumstances indicated,  no  recovery  was  al- 
lowed, upon  the  ground  that  the  injuries 
did  not  arise  out  of  the  employment : 
M'Crae  v.  Renfrew  (1914)  2  Scot.  L.  T. 
354,  51  Scot.  L.  R.  467  [1914]  S.  C.  539, 
7  B.  W.  C.  C.  898  (a  commercial  traveler 
went  to  a  town,  but  made  no  attempt  to 
transact  business,  and  became  intoxicat- 
ed, and  was  injured  at  the  station  while 
awaiting  the  train  home) ;  Murphy  v. 
L.R.A.1916A. 


Cooney  [1914]  2  I.  R.  76  [1914]  W.  C.  & 
Ins.  Rep.  44,  48  Ir.  Law  Times,  13,  7  B. 
W.  C.  C.  962  (mate  on  a  vessel  injured 
while  in  a  place  from  which  he  had  been 
ordered  by  the  master) ;  Horsfall  v.  The 
Jura  [1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
183,  6  B.  W.  C.  C.  213  (second  mate  of 
vessel  did  not  obey  order  of  captain  to  go 
to  his  room,  but  went  to  another  part  of 
the  vessel) ;  Frith  v.  The  Louisiana 
[1912]  2  K.  B.  (Eng.)  155,  81  L.  J.  K.  B. 
N.  S.  701  [1912]  W.  C.  Rep.  285,  5  B.  W. 
C.  C.  410,  106  L.  T.  N.  S.  667  [1912]  W. 
N.  98,  28  Times  L.  R.  331  (sailor  who  had 
been  on  shore  on  leave  returned  to  vessel 
in  state  of  hopeless  intoxication) ;  Nash 
v.  The  Rangatira  [1914]  3  K.  B.  (Eng.) 
978,  83  L.  J.  K.  B.  N.  S.  1496  [1914]  W. 
N.  291,  111  L.  T.  N.  S.  704,  58  Sol.  Jo. 
705,  7  B.  W.  C.  C.  590  (sailor  returned 
to  ship  in  drunken  condition,  and,  in 
going  up  gangway  from  quay  to  the  ship, 
let  go  his  hold  on  hand  rope  and  fell  onto 
the  quay). 

In  O'Brien  v.  Star  Line  (1908)  45  Scot. 
L.  R,  935,  1  B.  W.  C.  C.  177,  a  seaman 
returned  to  his  ship  late  at  night,  the 
worse  for  liquor,  and  was  found  the  next 
morning  lying  in  the  bottom  of  a  hold. 
There  was  no  evidence  as  to  how  he  came 
there,  and  it  was  held  that  it  could  not 
be  said  that  he  was  injured  by  accident 
arising  "out  of  and  in  the  course  of"  the 
employment. 

In  two  recent  cases,  however,  it  has 
been  held  that  where  a  workman  has  been 
injured  by  doing  the  precise  work  that 


352 


WORKMEN'S  COMPENSATION. 


he  was  employed  to  do,  he  may  recover 
compensation  for  such  injuries,  although 
he  was  intoxicated  at  the  time  of  the  in- 
jury. Williams  v.  Llandudno  Coaching 
&  Carriage  Co.  (1915)  31  Times  L.  R. 
(Eng.)  186,  84  L.  J.  K.  B.  N.  S.  655 
[1915]  W.  C.  &  Ins.  Rep.  91  [1915]  W. 
N.  52,  59  Sol.  Jo.  286  [1915]  2  K.  B.  101, 
112  L.  T.  N.  S.  848,  8  B.  W.  C.  C.  143 
(stableman,  required  to  go  to  a  loft  by 
means  of  a  ladder,  slipped  and  fell  from 


the  ladder  because  of  his  intoxicated  con- 
dition) ;  Frazer  v.  Riddell  [1914]  S.  C. 
125,  2  Scot.  L.  T.  377,  51  Scot.  L.  R.  110, 
[1914]  W.  C.  &  Ins.  Rep.  125,  7  B.  W.  C. 
C.  841  (engine  driver  on  traction  engine 
fell  off  foot  plate  and  was  fatally  in- 
jured; compensation  allowed  although 
driver  was  under  influence  of  drink,  and 
unfit  for  work  at  the  time). 

W.  M.  G. 


MICHIGAN    SUPREME   COURT. 

JESSIE  B.  CLEM 

v. 

CHALMERS   MOTOR   COMPANY,   Plff.   in 
Certiorari. 

(178  Mich.  340,  144  N.  W.  848.) 

Master  and  servant  —  employers'  lia- 
bility act  —  descent  from  roof  by 
rope  —  wilful  misconduct. 

A  carpenter  who  is  injured  by  attempt- 
ing to  descend  from  the  roof  of  a  building 
on  which  he  is  working  by  means  of  a  loose 
rope,  one  end  of  which  is  held  in  the  hands 
of  a  fellow  workman,  instead  of  by  the  lad- 
der provided  for  such  purpose,  is  within  the 
protection  of  the  employers'  liability  act 
providing  for  compensation  to  an  employee 
who  receives  injuries  arising  out  of  and  in 
the  course  of  his  employment,  and  not  with- 
in the  exception  of  injuries  received  by  his 
intentional  and  wilful  misconduct. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(McAlvay,   Ch.   J.,   dissents.) 
(January   5,    1914.) 

/CERTIORARI  to  review  an  order  of  the 
\J  Industrial  Accident  Board  affirming  an 
award  of  an  arbitration  committee  allow- 
ing the  claim  of  plaintiff  under  the  employ- 
ers' liability  act  for  injuries  to  her  hus- 
band resulting  in  death.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Bowen,  Douglas,  Eaman,  & 
Barbour,  for  plaintiff  in  certiorari: 

Clem  did  not  receive  a  personal  injury 
arising  out  of  and  in  the  course  of  his  em- 
ployment. 

Boyd,  Workmen's  Compensation,  §  472 ; 
Losh  v.  Richard  Evans  &  Co.  51  Week.  Rep. 
243,  19  Times  L.  R.  142;  Lowe  v.  Pearson 
[1899]  1  Q.  B.  261,  68  L.  J.  Q.  B.  N.  S.  122, 
79  L.  T.  N.  S.  654,  47  Week.  Rep.  193,  15 
Times  L.  R.  124;  Smith  v.  Lancashire  & 
Y.  R.  Co.  [1899]  1  Q.  B.  141,  68  L.  J.  Q. 

Note.  —  As  to  what  constitutes  "serious 
and  wilful  misconduct"  within  the  meaning 
of    the    compensation    act,    see    annotation 
following  this  case,  post,  355. 
L.R.A.1916A. 


B.  N.  S.   51,  47   Week.  Rep.   146,   79  L.  T. 
N.   S.   633,   15   Times  L.   R.   64;   Hendry  v. 
United  Collieries  [1910]  S.  C.  709,  47  Scot. 
L.  R.  635,  3  B.  W.  C.  C.  567;  Callaghan  v. 
Maxwell,   2   Sc.   Sess.  Cas.   5th   Series,  420, 
37  Scot.  L.  R.  313,  7  Scot.  L.  T.  339;  Wil- 
liams v.  Wigan   Coal  &  Iron   Co.   3  B.   W. 

C.  C.   65;    Barnes  v.  Nunnery  Colliery  Co. 
[1912]  A.  C.  44,  81  L.  J.  K."  B.  N.  S.  213, 
105  L.   T.  N.   S.  961,   28  Times  L.  R.   135, 
56  Sol.  Jo.  159,  49  Scot.  L.  R.  688,  5  B.  W. 
C.   C.   195;    Reed  v.  Great  Western   R.   Co. 
[1909]   A.  C.  31,  78  L.  J.  K.  B.  N.   S.  31, 
25  Times  L.  R.  36,  99  L.  T.  N.  S.  781,  53 
Sol.   Jo.    31;    Martin   v.   John    Fullerton   & 
Co.   [1908]   S.  C.  1030,  45  Scot.  L.  R.  812; 
Haley  v.  United  Collieries  [1907]  S.  C.  214; 
Morrison  v.  Clyde  Navigation   [1909]   S.  C. 
59,  46   Scot.   L.  R.   40;    Ruegg,   Employers' 
Liability  &  Workman's   Compensation,   8th 
ed.  p.  340. 

Clem  was  injured  by  reason  of  his  inten- 
tional and  wilful  misconduct. 

Low  v.  General  Steam  Fishing  Co.  [1909] 
S.  C.  63,  46  Scot.  L.  R.  55;  Roberts  v.  Peo- 
ple, 19  Mich.  401;  40  Cyc.  938;  Benfield  v. 
Vacuum  Oil  Co.  75  Hun,  209,  27  N.  Y. 
Supp.  16;  De  Young  v.  Irving,  5  App.  Div. 
499,  38  N.  Y.  Supp.  1089;  Baldwin,  Per- 
sonal Injury,  2d  ed.  §  358  ;>  Morgan  v.  Hud- 
son River  Ore  &  Iron  Co.  133  N.  Y.  666, 
31  N.  E.  234;  Seccombe  v.  Detroit  Electric 
R.  Co.  133  Mich.  170,  94  N.  W.  747;  Niles 
v.  New  York  C.  &  H.  R.  R.  Co.  14  App.  Div. 
70,  43  N.  Y.  Supp.  751,  1  Am.  Neg.  Rep. 
511;  Bist  v.  London  &  S.  W.  R.  Co.  [1907] 
A.  C.  209,  76  L.  J.  K.  B.  N.  S.  703,  96  L. 
T.  N.  S.  750,  23  Times  L.  R.  471,  8  Ann. 
Cas.  1;  Glasgow  Coal  Co.  v.  Sneddon,  7 
Sc.  Sess.  Cas.  5th  Series,  485;  Condron  v. 
Paul,  6  Sc.  Sess.  Cas.  5th  Series,  29,  41 
Scot.  L.  R.  33,  11  Scot.  L.  T.  383. 

Messrs.  Shields  &  Shields,  for  defend- 
ant in  certiorari: 

Clem  was  not  injured  by  reason  of  his 
intentional  and  wilful  misconduct. 

Com.  v.  Perrier,  3  Phila.  229;  Decker 
v.  McSorley,  116  Wis.  643,  93  N.  W.  808, 
13  Am.  Neg.  Rep.  631 ;  Lawlor  v.  Peopl«, 
74  111.  228. 


CLEM  v.  CHALMERS  MOTOR  CO. 


353 


Mrs.  Clem  is  entitled  to  compensation 
irrespective  of  whether  or  not  her  husband 
was  injured  by  reason  of  his  intentional 
and  wilful  misconduct. 

Boyd,  Workmen's  Compensation,  §  577, 
subdiv.  C,  p.  1136. 

Moore,  •!.,  delivered  the  opinion  of  the 
•court : 

This  is  certiorari  directed  to  the  Indus- 
tial  Accident  Board  of  the  state  to  review 
an  order  allowing  the  claim  of  Jessie  B. 
Clem,  widow  of  Charles  S.  Clem,  deceased, 
for  the  sum  of  $3,000  against  the  contest- 
ant. The  claim  is  made  under  the  employ- 
ers' liability  act,  so  called,  being  act  No. 
10  of  the  Public  Acts  of  the  Special  Session 
of  1912. 

Charles  S.  Clem  sustained  injuries  by 
falling  while  descending  from  the  roof  of 
a  building  in  the  course  of  construction  by 
means  of  a  rope.  It  is  conceded  if  there 
is  any  liability  that  the  compensation  of 
$3,000  is  a  correct  sum  to  be  paid.  Follow- 
ing the  death  of  Mr.  Clem,  an  arbitration 
was  had  before  an  arbitration  committee, 
which  allowed  the  claim.  An  appeal  was 
taken  to  the  Industrial  Accident  Board, 
which  Board  affirmed  the  award  of  the  arbi- 
tration committee. 

The  record  shows  Mr.  Clem  had  worked 
for  some  weeks  as  a  carpenter  for  the  Chal- 
mers Motor  Company.  On  the  day  of  the 
accident  he  was  assisting  in  placing  roof 
boards  upon  a  building  which  was  150  feet 
wide,  160  feet  long,  and  19  or  20  feet  high 
from  the  ground  to  the  eaves.  It  was  a 
flat  roof.  Between  9  and  10  o'clock  the 
men  were  instructed  by  a  subforeman  to 
come  down  from  the  top  of  the  building  for 
a  coffee  lunch,  so  called.  The  men  went  to 
and  from  the  roof  in  the  course  of  the  work 
by  means  of  a  ladder  which  was  attached 
firmly  to  the  side  of  the  building,  extend- 
ing from  the  ground  to  the  roof.  There 
were  on  the  roof  of  the  building  some  loose 
ropes.  These  were  used  for  the  purpose  of 
raising  and  lowering  material.  They  were 
not  provided  for  men  to  go  up  and  down. 
On  the  call  being  made  to  come  for  the  cof- 
fee, all  of  the  men  descended  by  the  ladder 
but  Mr.  Clem  and  two  fellow  workmen 
named  Sekos  and  Glaser.  Instead  of  going 
down  the  ladder,  Mr.  Clem  picked  up  one  of 
the  loose  ropes  about  20  feet  long  and  gave 
one  end  of  it  to  Sekos,  directing  him  to 
hold  it  in  his  hand.  The  rope  extended  over 
the  edge  of  the  roof  about  7  feet.  Taking  the 
rope  in  his  hands,  Mr.  Clem  passed  over  the 
edge  of  the  roof  and  disappeared  from 
the  sight  of  the  two  men  on  the  roof.  If 
anyone  saw  what  happened  after  that,  it 
does  not  appear  in  the  record  further  than 


that  Mr.  Clem  fell  and  was  hurt,  receiving 
injuries  which  resulted  in  his  death. 
The  following  appears  in  the  record: 

Mr.  Kinnane:  Now,  is  it  contended  that 
the  act  of  coming  down  off  the  building  to 
coffee  lunch  when  they  were  called  by  the 
foreman  for  that  cause  was  not  in  the  due 
course  of  their  employment?  I  am  not 
speaking  of  the  manner  of  doing  it,  but  the 
fact  of  their  coming  down  and  going  back. 

Mr.  Rogers:  I  concede  that  was  a  part 
of  his  employment. 

Mr.  Kinnane:  Then  it  would  simmer 
down  to  the  manner  of  coming  down,  would 
it  not? 

A.  Yes. 

Mr.  Kinnane:  That  would  be  the  only 
matter  at  issue? 

Mr.  Rogers:  Yes.  My  point  on  that 
matter  as  to  that  act:  When  the  man  was 
doing  that  act  he  was  not  in  the  course  of 
his  employment. 

It  is  the  claim  of  appellant  (we  quote 
from  the  brief)  :  "(1)  Charles  S.  Clem, 
the  deceased,  did  not  receive  a  personal  in- 
jury arising  out  of  and  in  the  course  of  his 
employment.  (2)  He  was  injured  by  rea- 
son of  his  intentional  and  wilful  miscon- 
duct." 

The  statute  involved  here  is  of  such  re- 
cent date  that  its  construction  has  never 
been  before  this  court.  Statutes  of  a  simi- 
lar character  are  so  recent  that  there  is  a 
paucity  of  decisions  relating  to  them,  espe- 
cially in  the  American  courts.  Counsel  cite 
a  number  of  English  and  Scotch  cases,  but 
none  of  them  are  on  all  fours,  nor  is  the 
principle  of  law  stated  in  them  controlling 
in  the  case  before  us. 

The  case  now  in  this  court  is  one  of  first 
impression.  The  title  of  act  No.  10,  Public 
Acts  of  Special  Session  of  1912,  reads  as 
follows:  "An  Act  to  Promote  the  Welfare 
of  the  People  of  This  State,  Relating  to  the 
Liability  of  Employers  for  Injuries  or 
Death  Sustained  by  Their  Employees,  Pro- 
viding Compensation  for  the  Accidental 
Injury  to  or  Death  of  Employees,  and  Meth- 
ods for  the  Payment  of  the  Same,  Estab- 
lishing an  Industrial  Accident  Board,  De- 
fining Its  Powers,  Providing  for  a  Review 
of  Its  Awards,  Making  an  Appropriation 
to  Carry  out  the  Provisions  of  This  Act, 
and  Restricting  the  Right  to  Compensation 
or  Damages  in  Such  Cases  to  Sucli  as  Are 
Provided  by  This  Act." 

We  quote  from  the  act: 

"The  people  of  the  state  of  Michigan  en- 
act: 

"Part  1.    Modification  of  remedies. 

"Section  1.  In  an  action  to  recover  dam- 
ages for  personal  injury  sustained  by  an 
employee  in  the  course  of  his  employment, 


L.R.A.1916A. 


23 


354 


WORKMEN'S  COMPENSATION. 


or  for  death  resulting  from  personal  in- 
juries so  sustained,  it  shall  not  be  a  de- 
fense: (a)  That  the  employee  was  negli- 
gent, unless  and  except  it  shall  appear  that 
such  negligence  was  wilful;  (b)  that  the 
injury  was  caused  by  the  negligence  of  a 
fellow  employee;  (c)  that  the  employee 
had  assumed  the  risks  inherent  in,  or  in- 
cidental to,  or  arising  out  of  his  employ- 
ment, or  arising  from  the  failure  of  the 
employer  to  provide  and  maintain  safe 
premises  and  suitable  appliances. 

"Section  2  The  provisions  of  §  1  shall 
not  apply  to  actions  to  recover  damages  for 
personal  injuries  sustained  by  household 
domestic  servants  and  farm  laborers. 

"Section  3.  The  provisions  of  §  1  shall 
not  apply  to  actions  to  recover  damages  for 
the  death  of,  or  for  personal  injuries  sus- 
tained by,  employees  of  any  employer  who 
has  elected,  with  the  approval  of  the  In- 
dustrial Accident  Board  hereinafter  created, 
to  pay  compensation  in  the  manner  and  to 
the  extent  hereinafter  provided 

"Section  4.  Any  employer  who  has  elected 
with  the  approval  of  the  Industrial  Acci- 
dent Board  hereinafter  created,  to  pay  com- 
pensation as  hereinafter  provided,  shall  not 
be  subject  to  the  provisions  of  §  1 ;  nor 
shall  such  employer  be  subject  to  any  other 
liability  whatsoever,  save  as  herein  pro- 
vided for  the  death  of,  or  personal  injury 
to,  any  employee,  for  which  death  or  in- 
jury compensation  is  recoverable  under 
this  act,  except  as  to  employees  who  have 
elected  in  the  manner  hereinafter  provided 
not  to  become  subject  to  the  provisions  of 
this  act." 

U  he  appellant  elected  to  come  within  the 
provisions  of  the  act. 

Sections  1  and  2,  pt.  2,  of  the  act,  read 
in  part  as  follows: 

"Section  1.  If  an  employee  who  has  not 
given  notice  of  his  election  not  to  be  sub- 
ject to  the  provisions  of  this  act.  as  pro- 
vided in  part  1,  §  8,  or  who  has  given  such 
notice  and  has  waived  the  same  as  here 
inbefore  provided,  receives  a  personal  in- 
jury arising  out  of  and  in  the  course  of  his 
employment  by  an  employer  who  is  at  the 
time  of  such  injury  subject  to  the  provi- 
sions of  this  act,  he  shall  be  paid  compensa- 
tion in  the  manner  and  to  the  extent  here- 
inafter provided,  or  in  case  of  his  death 
resulting  from  such  injuries  such  compen- 
sation shall  be  paid  to  his  dependents  as 
hereinafter  defined 

"Section  2.  If  the  employee  is  injured  by 
reason  of  his  intentional  and  wilful  mis- 
conduct, he  shall  not  receive  compensation 
under  the  provisions  of  this  act." 

We  have  quoted  sufficiently  from  the  act 
to  show  that  it  is  a  very  marked  departure 
L.R.A.1916A. 


from  the  old  rule  of  liability  on  the  part  of 
the  employer  to  the  employee.  It  is  clear 
that  as  to  the  employer  who  has  accepted 
I  the  provisions  of  the  act,  the  risks  of  the 
I  employee  arising  out  of  and  in  the  course 
of  his  employment  are  not  assumed  as  here- 
tofore by  the  employee,  but  must  be  com- 
pensated for  according  to  the  provisions 
of  the  act,  unless  the  employee  is  injured 
by  reason  of  his  intentional  and  wilful  mis- 
conduct. 

The  first  question,  then  is:  Did  Mr. 
Clem  receive  a  personal  injury  arising  out 
of  and  in  the  course  of  his  employment? 
And  the  second  question  is:  Was  he  in- 
jured by  reason  of  his  intentional  and  wil- 
ful misconduct?  The  questions  are  so  in- 
terwoven that  they  may  well  be  discussed 
together.  Mr.  Clem,  with  others,  was  em- 
ployed on  a  December  day  constructing  a 
flat  roof  on  a  large  building  only  19  or  2O 
feet  high.  It  would  add  not  only  to  the 
comfort  of  these  men,  but  to  their  efficiency 
as  workers,  to  have  them  about  9  or  10- 
o'clock  partake  of  a  luncheon,  which  from 
the  fact  that  hot  coffee  was  served  was  called 
a  coffee  lunch.  The  luncheon  was  ordered 
by  the  foreman  of  the  company.  It  was 
prepared  on  the  premises,  and  when  it  was- 
ready  the  men  were  directed  by  the  sub- 
foreman  to  go  and  partake  of  it.  All  of 
them  started  to  do  so.  They  did  not  in. 
doing  so  leave  the  premises  of  the  appel- 
lant. All  of  them  but  three  went  down  the- 
ladder.  Mr.  Clem  went  down  the  rope, 
which  projected  over  the  eaves  7  feet.  If 
he  had  kept  hold  of  the  rope  until  he 
reached  the  end  of  it,  if  he  was  a  man  of 
ordinary  height  and  his  arms  were  of  the 
ordinary  reach,  his  feet  would  be  within 
5  to  7  feet  of  the  ground.  If,  when  the  call 
to  come  to  lunch  was  made,  Mr.  Clem,  in. 
responding  to  the  call,  had  inadvertently 
stepped  into  an  opening  in  the  uncom- 
pleted roof,  or  in  company  with  the  others 
had,  in  the  attempt  to  reach  the  ladder,  got 
too  near  the  edge  of  the  roof  and  fallen  and 
been  hurt,  would  it  be  claimed  that  the  in- 
,ury  did  not  arise  out  of  and  in  the  course 
of  his  employment?  The  getting  his- 
luncheon  under  the  conditions  shown  was- 
just  as  much  a  part  of  his  duty  as  the  lay- 
ing of  a  board  or  the  spreading  of  the 
roofing  material.  The  injury,  then,  having 
arisen  out  of  and  in  the  course  of  his  em- 
ployment, can  it  be  said  that  compensation 
should  be  defeated  because  of  his  intention- 
al and  wilful  misconduct?  His  primary 
object  was  like  that  of  all  the  other  men  to 
get  to  and  partake  of  his  luncheon.  There- 
is  nothing  to  indicate  that  he  intended  or 
expected  to  be  hurt.  Nearly  all  the  other- 


CLEM  v.  CHALMERS  MOTOR  CO. 


355 


men  went  down  by  the  ladder.  He  went 
down  by  a  rope  where,  if  his  plans  had  car- 
ried, he  would  have  had  to  make  a  drop 
of  only  5  to  7  feet.  Is  that  such  intention- 
al and  wilful  misconduct  as  to  defeat  com- 
pensation under  the  act?  There  is  scarcely 
a  healthy,  wide-awake  ten-year-old  boy  who 
does  not  frequently  take  a  greater  chance 
and  without  harm.  For  a  man  accustomed 
to  physical  toil,  judged  by  what  is  occur- 
ring daily,  it  cannot  be  said  that  such  an 
act  should  be  characterized  as  intentional 


and  wilful  misconduct  within  the  meaning 
of  the  statute. 

The  allowance  of  the  claim  is  affirmed. 

Stcere,  Brooke,  Stone,  Kuhn,  Os- 
trander,  and  Bird,  JJ.,  concur. 

McAlvay,  Ch.  J.,  dissenting: 

I  think  that  the  cause  of  the  injury  to 
the  deceased  was  his  intentional  wilful  mis- 
conduct, and  therefore  cannot  concur  in 
this  opinion. 


Annotation — What    constitutes    "serious   and    wilful    misconduct"    within 
the  meaning  of  the  compensation  act. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

Under  the  English  act  the  employer  is 
not  liable  if  the  injury  has  been  caused 
by  the  "serious  and  wilful  misconduct" 
of  the  workman;  similar  provisions  are 
found  in  the  majority  of  the  American 
statutes. 

Under  the  New  Jersey  statute  the  em- 
ployer is  not  exempted  from  liability 
for  compensation  because  of  the  "wilful" 
negligence  on  the  part  of  the  workman; 
he  is  exempted  from  such  liability  only 
when  the  injury  or  death  is  intentionally 
self-inflicted,  or  when  intoxication  is  the 
natural  and  proximate  cause  of  the  in- 
jury. West  Jersey  Trust  Co.  v.  Phila- 
delphia &  R.  R.  Co.  (1915)  —  N.  J. 
L.  — ,  95  Atl.  753;  Taylor  v.  Seabrook 
(1915)  —  N.  J.  L.  — ,  94  Atl.  399. 

"Wilful  misconduct"  means  something 
more  than  mere  negligence.  Great  West- 
ern Power  Co.  v.  Pillsbury  (1915)  — 
Cal.  — ,  149  Pac.  35;  CLEM  v.  CHALMERS 
MOTOR  Co. 

Or  even  gross  negligence.    Burns'  Case 

(1914)  218  Mass.  8,  105  N.  E.  601,  5  N. 
C.  C.   A.  635;  Nickerson's  Case   (1914) 
218  Mass.  158,  105  N.  E.  604,  5  N.  C. 
C.  A.  645;  Gignac  v.  Studebaker  Corp. 

(1915)  —  Mich.  — ,  152  N.  W.  1037. 
The  phrase  involves  conduct  of  a  quasi 

criminal  nature,  the  intentional  doing  of 
something,  either  with  the  knowledge 
that  it  is  likely  to  result  in  serious  in- 
jury, or  with  wanton  and  reckless  dis- 
regard of  its  probable  consequences. 
Burns's  Case  (Mass.)  supra. 

In  Wallace  v.  Glenboig  Fire  Clay  Co. 
[1907]  S.  C.  (Scot.)  967,  as  cited  in 
2  Mews'  Dig.  (1898-07)  Supp.  1547,  it 
was  held  that  the  act  must  be  wilful  and 
also  serious, — that  is  not  doubtful  or 
trivial  in  quality. 

It  has  been  said  that  misconduct  is 
not  "serious  and  wilful"  unless  moral 
L.R.A.1916A. 


blame  attaches  to  it.  Praties  v.  Brox- 
burn  Oil  Co.  [1906-07]  S.  C.  (Scot.) 
581. 

And  that  the  word  "serious"  imports 
deliberateness,  not  merely  thoughtless- 
ness. Johnson  v.  Marshall,  Sons  &  Co. 
[1906]  A.  C.  (Eng.)  409,  75  L.  J.  K.  B. 
N.  S.  868,  94  L.  T.  N.  S.  828,  22  Times 
L.  R.  565,  8  W.  C.  C.  10,  5  Ann.  Cas. 
630. 

The  act  itself  must  be  serious,  and  not 
merely  the  consequences  thereof  as  viewed 
after  the  happening.  Johnson  v.  Mar- 
shall, Sons  &  Co.  (Eng.)  supra;  Hill  v. 
Granby  Consol.  Mines  (1908)  12  B.  C. 
118;  Rees  v.  Powell  Duffryn  Steam  Coal 
Co.  (1900)  64  J.  P.  (Eng.)  164  (miner 
injured  while  walking  along  a  tram  in 
a  mine  where  he  knew  trams 'were  ap- 
proaching, but  injury  was  caused  by  rope 
slipping,  and  there  was  no  evidence  that 
he  could  not  have  reached  a  manhole 
before  the  tram  reached  him) ;  Todd  v. 
Caledonian  R.  Co.  (1899)  1  Sc.  Sess. 
Cas.  5th  Series,  1047,  36  Scot.  L.  R.  784, 
7  Scot.  L.  T.  85;  Glasgow  &  S.  W.  R. 
Co.  v.  Laidlow  (1900)  2  Sc.  Sess.  Cas. 
5th  Series,  708,  37  Scot.  L.  R.  503,  7 
Scot.  L.  T.  420.  And  see  CLEM  v.  CHAL- 
MERS MOTOR  Co. 

The  miner's  injury  must  be  held  at- 
tributable to  his  own  serious  and  wilful 
misconduct  where  he  was  injured  in  at- 
tempting to  cross  the  rails  in  a  mine- 
while  the  hutches  were  running,  and  all 
injury  could  have  been  avoided  by  wait- 
ing until  the  hutches  had  ceased  run- 
ning. Condron  v.  Paul  (1903)  6  Sc. 
Sess.  Cas.  5th  Series,  29,  41  Scot.  L.  R. 
33,  11  Scot.  L.  T.  383. 

The  act  of  a  farm  servant  who,  in> 
driving  a  lorry,  ties  the  reins  to  a  small 
wheel  which  works  a  brake  on  the  front 
of  the  lorry,  instead  of  keeping  them  in, 
his  hands,  thereby  causing  the  horse's 
head  to  be  pulled  around  so  as  to  make- 
it  run  away  and  upset  the  lorry,  amounts. 


356 


WORKMEN'S  COMPENSATION. 


to  serious  and  wilful  misconduct.  Vaughan 
v.  Nichol  (1906)  8  Sc.  Sess.  Cas.  (Scot.) 
5th  Series,  464. 

The  mere  fact  that  if  a  minor  plain- 
tiff had  told  the  truth  about  his  age  he 
would  not  have  been  employed  is  not 
"serious  and  wilful  misconduct"  to 
which  his  injury  in  the  course  of  that 
employment  can  be  "attributed  solely," 
under  the  British  Columbia  act.  Darnley 
v.  Canadian  P.  R.  Co.  (1908)  4  B.  C.  15, 
2  B.  W.  C.  C.  505. 

An  employee  was  not  negligent  as  a 
matter  of  law  in  going  onto  a  wet  and 
slippery  walk  to  clear  the  debris  from 
the  rack  protecting  the  flume  leading 
water  from  the  dam  to  the  mill  in  which 
he  was  employed,  where  the  work  was 
necessary  and  all  fairminded  men  would 
not  believe  that  the  risk  of  injury  was 
so  apparent  that  the  ordinary  prudent 
man  would  not  have  encountered  it. 
Boody  v.  K.  &  C.  Mfg.  Co.  ante,  10. 

The  phrase  "serious  neglect"  as  used 
in  §  2,  subsection  C,  of  the  British  Co- 
lumbia act  does  not  refer  to  the  conduct 
of  the  workman  after  the  injury.  Powell 
v.  Crow's  Nest  Pass  Coal  Co.  (1915) 
—  B.  C.  — ,  23  D.  L.  R.  57. 

Refusal  of  an  injured  workman  who 
was  unable  to  speak  or  understand  the 
English  language,  and  was  suffering  great 
pain,  to  submit  to  a  serious  operation 
until  fifteen  or  sixteen  hours  after  it 
was  first  found  necessary,  does  not 
amount  to  the  intentional  and  wilful 
misconduct  which  will  defeat  the  right 
to  compensation.  Jendrus  v.  Detroit 
Steel  Products  Co.  post,  381. 

Intoxication  has  been  held  to  be  serious 
and  wilful  misconduct  under  the  Eng- 
lish act.  Burrell  v.  Avis  (1898;  C.  C.) 
106  L.  T.  Jo.  (Eng.)  61,  1  W.  C.  C.  129; 
M'Groarty  v.  John  Brown  &  Co.  (1906) 
8  Sc.  Sess.  Cas.  (Scot.)  5th  Series,  809. 

Suicide  has  been  spoken  of  as  wilful 
misconduct.  Milwaukee  Western  Fuel 
Co.  v.  Industrial  Commission  (1915) 
159  Wis.  635,  150  N.  W.  998. 

A  workman  is  not,  as  a  matter  of  law, 
guilty  of  serious  and  wilful  misconduct 
merely  because  he  has  violated  rules  and 
orders  laid  down  by  the  master.  George 
v.  Glasgow  Coal  Co.  [1909]  A.  C.  (Eng.) 
123,  78  L.  J.  P.  C.  N.  S.  47,  99  L.  T. 
N.  S.  782,  25  Times  L.  R.  57,  [1909]  S. 
C.  1,  46  Scot.  L.  R.  28,  2  B.  W.  C.  C. 
125;  Rumboll  v.  Nunnery  Colliery  Co. 
(1899)  80  L.  T.  N.  S.  (Eng.)  42,  63  J. 
P.  132;  Logue  v.  Fullerton  (1901)  3 
L.K.A  1016A. 


Sc.  Sess.  Cas.  5th  Series,  1006,  38  Scot. 
L.  R.  738,  9  Scot.  L.  T.  152;  Reeks  v. 
Kynoch  (1901)  18  Times  L.  R.  (Eng.)  34, 
50  Week.  Rep.  130,  2  N.  C.  C.  A.  877. 

Serious  and  wilful  misconduct  does  not 
include  every  violation  of  a  rule  or  of 
express  orders.  Great  Western  Power 
Co.  v.  Pillsbury  (1915)  --  CaL  — ,  149 
Pac.  35. 

Of  course,  if  the  rule  is  unknown  to 
the  workman,  or  is  habitually  violated 
by  the  employee,  then  it  cannot  be  said 
that  the  violation  of  such  rule  by  the 
injured  employee  is,  as  a  matter  of  law, 
serious  and  wilful  misconduct.  McAr- 
thur  v.  McQueen  (1901)  3  Sc.  Sess.  Cas. 
5th  Series,  1010,  38  Scot.  L.  R.  732,  9 
Scot,  L.  T.  114;  M'Nicol  v.  Spiers  (1899) 
1  Sc.  Sess.  Cas.  5th  series,  604,  36  Scot. 
L.  R.  428,  6  Scot.  L.  T.  353;  Casey  v. 
Humphries  [1913]  6  B.  W.  C.  C.  520,  W. 
N.  (Eng.)  221,  29  Times  L.  R.  647, 
57  Sol.  Jo.  716;  Johnson  v.  Marshall, 
Sons  &  Co.  [1906]  A.  C.  (Eng.)  409,  75 
L.  J.  K.  B.  N.  S.  868,  94  L.  T.  N.  S. 
828,  22  Times  L.  R.  565,  8  W.  C.  C.  10, 
5  Ann.  Cas.  630. 

It  has  also  been  held  that  ignorance  of 
a  rule  for  the  guidance  of  miners  may 
not  amount  to  serious  and  wilful  mis- 
conduct, although  the  miners  had  means 
of  knowledge  of  the  rule.  M'Nicol  v. 
Spiers  (1899)  1  Sc.  Sess.  Cas.  5th  series, 
604,  36  Scot.  L.  R.  428,  6  Scot.  L.  T. 
353.  But  a  decision  apparently  to  the 
contrary  has  been  handed  down  by  the 
Scottish  court  of  session  in  regard  to  a 
statutory  rule.  Dobson  v.  United  Col- 
lieries (1905)  8  Sc.  Sess.  Cas.  (Scot.) 
5th  Series,  241  (miner  carrying  cart- 
ridge not  in  case,  with  naked  light  in  his 
cap). 

The  act  of  a  painter  in  working  around 
machinery  while  it  was  in  motion,  after 
he  had  been  told  not  to,  may  be  found 
not  to  be  serious  and  wilful  misconduct, 
where  he  was  justified  in  believing  that 
the  machinery  would  stop  at  any  mo- 
ment. Niekerson's  Case  (1914)  218  Mass. 
158,  105  N.  E.  604,  5  N.  C.  C.  A.  645. 

But  the  breach  of  an  express  rule  or 
order,  particularly  if  made  expressly  for 
the  safety  of  the  employee,  will  gen- 
erally be  held  to  be  serious  or  wilful  mis- 
conduct as  a  matter  of  fact.  Callaghan 
v.  Maxwell  (1900)  2  Sc.  Sess.  Cas.  5th 
Series,  420,  37  Scot.  L.  R.  313,  7  Scot. 
L.  R.  339  (girl  at  work  on  threshing 
machine  attempted  to  step  across  open- 
ing through  which  sheaves  were  fed  to 


SERIOUS  AND  WILFUL  MISCONDUCT. 


357 


the  machine) ;  Dailly  v.  Watson  (1900) 
2  Sc.  Sess.  Cas.  5th  Series,  1044,  37 
Scot.  L.  R.  782,  7  Scot.  L.  T.  73  (miner 
carrying  naked  lamp  on  cap  while  car- 
rying cartridges  not  inclosed  in  a  case) ; 
United  Collieries  v.  M'Ghie  (1904)  6 
Sc.  Sess.  Cas.  5th  Series,  808,  41  Scot. 
L.  R.  705,  12  Scot.  L.  T.  650,  and  Lynch 
v.  Baird  (1904)  6  Sc.  Sess.  Cas.  5th 
Series,  271,  41  Scot.  L.  R.  214,  11  Scot. 
L.  T.  597  (miners  contravened  special 
rule  framed  under  the  coal  mines  reg- 
ulation act) ;  O'Hara  v.  Cadzow  Coal  Co. 
(1903)  5  Sc.  Sess.  Cas.  (Scot.)  5th  Series, 
439  (miner  violated  rule  requiring  erec- 
tion of  props  at  specified  intervals) ; 
John  v.  Albion  Coal  Co.  (1901)  18  Times 
L.  R.  (Eng.)  27,  65  J.  P.  788  (miner 
failed  to  get  into  manhole  in  main  haul- 
age road  of  mine  after  warning  of  the 
approach  of  cars) ;  Guthrie  v.  Boase 
Spinning  Co.  (1901)  3  Sc.  Sess.  Cas.  5th 
Series,  769,  38  Scot.  L.  R.  483  (cleaning 
machinery  in  motion) ;  Bist  v.  London  & 
S.  W.  R.  Co.  [1907]  A.  C.  (Eng.)  209, 
76  L.  J.  K.  B.  N.  S.  703,  96  L.  T.  N.  S. 
750,  23  Times  L.  R.  471.  8  Ann.  Cas.  1; 
and  Jones  v.  London  &  S.  W.  R.  Co. 
(1901)  3  W.  C.  C.  (Eng.)  46  (engine 
driver  left  foot  plate  of  engine  while 
in  motion) ;  Brooker  v.  Warren  (1907) 
23  Times  L.  R.  (Eng.)  201  (workman 
failed  to  use  guard  to  a  saw) ;  Powell 
v.  Lanarkshire  Steel  Co.  (1904)  6  Sc. 
Sess.  Cas.  (Scot.)  5th  Series,  1039  (boy 
went  into  dangerous  place) ;  Granick  v. 
British  Columbia  Sugar  Ref.  Co.  (1909) 
14  B.  C.  251  (use  of  freight  elevator) ; 
Watson  v.  Butterley  Co.  (1902;  C.  C.) 
114  L.  T.  Jo.  (Eng.)  178,  5  W.  C.  C.  51 
(breach  of  general  rule  in  the  mine) ; 
Waddell  v.  Coltness  Iron  Co.  [1913]  W. 
C.  &  Ins.  Rep.  42,  52  Scot.  L.  R.  29,  6 
B.  W.  C.  C.  306  (miner  did  not  wait 
prescribed  time  after  lighting  a  fuse) ; 
Rowe  v.  Reynolds  (1900)  12  West  Austr. 
L.  R.  75  (miner  rode  on  truck  of  ore 
traveling  about  6  miles  an  hour  by  gravi- 
tation) ;  Donnachie  v.  United  Collieries 
[1910]  S.  C.  503,'  47  Scot.  L.  R.  412 
(carelessness  in  using  naked  light  in 
mine) ;  George  v.  Glasgow  Coal  Co. 
[1909]  A.  C.  (Eng.)  123,  78  L.  J.  P.  C.  N. 
S,  47,  99  L.  T.  N.  S.  782,  25  Times  L.  R. 
57,  [1909]  S.  C.  (H.  L.)  1,  46  Scot.  L.  R. 
28,  2  B.  W.  C.  C.  125  (opening  gate  to 
shaft  before  cage  was  stopped) ;  Beall  v. 
Fox  (1909;  C.  C.)  126  L.  T.  Jo.  (Eng.) 
257,  2  B.  W.  C.  C.  467  (charwoman  hang- 
ing out  clothes  stood  on  ledge  of  a  glass 
frame). 
L.R.A.1916A. 


In  Great  Western  Power  Co.  v.  Pills- 
bury  (1915)  --  Cal.  — ,  149  Pac.  35,  it 
was  held  that  the  failure  of  an  expe- 
rienced lineman  to  use  rubber  gloves 
while  working  around  live  wires,  as  the 
rule  of  the  employer  required,  was  seri- 
ous and  wilful  misconduct,  which  was  a 
bar  to  the  recovery  of  compensation. 

Where  a  workman  does  a  dangerous 
act  contrary  to  the  express  orders  of 
his  superior,  and  is  injured,  the  accident 
is  one  intentionally  produced  within  the 
meaning  of  the  Quebec  act.  Jette  v. 
Grand  Trunk  Co.  (1911)  Rap.  Jud, 
Quebec  40  C.  S.  204  (brakeman  jumped 
off  moving  train). 

Notwithstanding  that  the  workman  has 
been  guilty  of  serious  and  wilful  mis- 
conduct, such  conduct  on  his  part  will 
not  prevent  a  recovery  unless  it  was  the 
proximate  cause  of  the  injury.  Praties 
v.  Broxburn  Oil  Co.  [1906]  S.  C.  (Scot.) 
581;  Allan  v.  v.  Glenborg  Union  Fire 
Clay  Co.  [1906]  S.  C.  (Scot.)  967;  Glas- 
gow Coal  Co.  v.  Sneddon  (1905)  7  Sc. 
Sess.  Cas.  (Scot.)  5th  Series,  485. 

The  burden  of  proving  that  the  ac- 
cident was  due  to  the  serious  and  wilful 
misconduct  to  the  workman  is  upon  the 
employer.  British  Columbia  Sugar  Ref. 
Co.  v.  Granick  (1910)  44  Can.  S.  C.  105, 
2  N.  C.  C.  A.  852. 

Whether  or  not  a  workman  is  guilty 
of  serious  or  wilful  misconduct  is  a  ques- 
tion of  fact.  Johnson  v.  Marshall,  Sons 
&  Co.  [1906]  A.  C.  (Eng.)  409,  75  L.  J. 
K.  B.  N.  S.  868,  94  L.  T.  N.  S.  828,  22 
Times  L.  R.  565,  8  W.  C.  C.  10,  5  Ann. 
Cas.  630;  Casey  v.  Humphries  [1913]  6 
B.  W.  C.  C.  520,  W.  N.  (Eng.)  221,  29 
Times  L.  R.  648,  57  Sol.  Jo.  716;  Leish- 
mann  v.  Dixon  [1910]  S.  C.  498,  47  Scot. 
L.  R.  410,  3  B.  W.  C.  C.  560;  Mitchell  v. 
Whitton  [1906]  S.  C.  (Scot.)  1267; 
Nickerson's  Case  (1914)  218  Mass.  158, 
105  N.  E.  604,  5  N.  C.  C.  A.  645; 
Nekoosa-Edwards  Paper  Co.  v.  Indus- 
trial Commission,  ante,  348. 

The  California  supreme  court,  how- 
ever, has  held  that,  inasmuch  as  no  com- 
pensation can  be  awarded  to  a  workman 
whose  injuries  were  caused  by  his  own 
wilful  misconduct,  the  question  whether 
the  accident  was  caused  by  the  wilful 
misconduct  of  the  employee  is  one  which 
goes  to  the  jurisdiction  of  the  Industrial 
Board,  and  is  therefore  open  to  inquiry 
by  the  court  on  certiorari.  Great  West- 
ern Power  Co.  v.  Pillsbury  (1915)  - 
Cal.  — ,  149  Pac.  35.  W.  M.  G. 


358 


WORKMEN'S  COMPENSATION. 


WASHINGTON    SUPREME    COURT. 

(Department   No.    2.) 

HORACE  E.  FEET,  Appt., 

v. 
E.  M.  MILLS,  Respt. 

(76  Wash.  437,  136  Pac.  685.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  effect  on  employee's 
right  of  action  against  third  person. 

1.  Any  right  of  action  which  an  injured 
employee  might  otherwise  have  had  for  neg- 
ligence,   either    against    his    employer    or 
against  a  third  person,  must  be  considered 
as  having   been   abolished   by   a   workmen's 
compensation   act  which   imposes  upon   the 
industries    within    its    purview    the    burden 
arising  out  of  injuries  to  their  employees, 
and   to  that   end   withdraws  all   phases   of 
the  premises  from  private  controversy,  re- 
gardless of  questions  of  fault,   and   to   the 
exclusion   of   every   other   remedy,   proceed- 
ing,  and  compensation,   except  as  provided 
in  the  act. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Statute  —  sufficiency  of  title. 

2.  A  title  indicating  that  the  act  relates 
to  the  compensation  of  injured  workmen  is 
broad   enough   to   include   the    abolition    of 
negligence  as  a  ground  of  recovery  against 
third   persons,   since    it    indicates   that   the 
act  is  intended  to  furnish  the  only  compen- 
sation to  be  allowed. 

For  other  cases,  see  Statutes,  I.  e,  2,  in  Dig. 
1-52  N,  S. 

(November  28,  1913.) 

APPEAL  by  plaintiff  from  a  judgment  of 
the  Superior  Court  for  King  County 
dismissing  an  action  brought  to  recover 
damages  for  personal  injuries  alleged  to 
have  been  caused  by  defendant's  negligence. 
Affirmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Charles  P.  Spooner  and  George 
R.  Biddle,  for  appellant: 

The  right  sought  to  be  enforced  here  is 
one  existing  at  common  law,  and  without 
the  aid  of  legislation,  and  a  statute  in  der- 
ogation of  such  common-law  rights  should 
be  strictly  construed. 

Hays  v.  Miller,  1  Wash.  Terr.  143;  Thurs- 
ton  County  v.  Sisters  of  Charity,  14  Wash. 
264,  44  Pac.  252;  Seattle  v.  Fidelity  Trust 
Co.  22  Wash.  154,  60  Pac.  133;  State  ex 
rel.  Atty.  Gen.  v.  Superior  Ct.  36  Wash. 
381,  78  Pac.  1011. 

The  title  of  the  act  is  not  broad  enough 
to  permit  the  body  of  the  act  to  contain 


Note.  —  As  to  rights  and  remedies  under 
compensation     acts     where     injuries     were 
caused   by  negligence   of   third   person,   see 
annotation  following  this  case,  post,  360. 
L.R.A.1916A. 


such  a  provision  as  would  abolish  plain- 
tiff's right  of  action. 

State  v.  Merchant,  48  Wash.  69,  9.2  Pac. 
890;  Blalock  v.  Condon,  51  Wash.  608,  99 
Pac.  733;  State  ex  rel.  Arnold  v.  Mitchell, 
55  Wash.  513,  104  Pac.  791;  State  v.  Tie- 
man.  32  Wash.  294,  98  Am.  St.  Rep.  854, 
73  Pac.  375;  State  v.  Poole,  42  Wash.  192, 
84  Pac.  727 ;  State  ex  rel.  Matson  v.  Supe- 
rior Ct.  42  Wash.  491,  85  Pac.  264. 

Messrs.  Kerr  &  McCord  and  J.  N. 
Hamill,  for  respondent: 

A  statute  should  always  be  construed 
with  reference  to  its  object,  so  that  the  in- 
tention of  the  legislature  would  be  given 
effect. 

State  ex  rel.  Oregon  R.  &  Nav.  Co.  v. 
Clausen,  63  Wash.  535,  116  Pac.  7;  State 
v.  Stewart,  52  Wash.  61,  100  Pac.  153,  37 
Ann.  Cas.  411;  36  Cyc.  1173.  • 

When  a  new  right  is  created  by  a  stat- 
ute which  provides  a  method  in  which  the 
right  may  be  enforced,  the  method  thus 
provided  is  the  only  one  which  can  be 
pursued. 

Pollock  v.  Eastern  R.  Co.  124  Mass.  158. 

Where  the  parties  are  operating  under 
the  act,  the  injured  employee,  and  his  de- 
pendents in  case  of  his  death,  are  compelled 
to  accept  compensation  from  the  insurance 
fund  in  the  manner  provided. 

State  ex  rel.  Yaple  v.  Creamer,  85  Ohio 
St.  349,  39  L.R.A.(N.S.)  694,  97  N.  E. 
602. 

Messrs.  H.  V.  Tanner,  Attorney  General 
and  S.  H.  Kelleran,  Assistant  Attorney 
General,  amici  curise. 

Morris,  J.,  delivered  the  opinion  of  the 
court: 

By  this  appeal  we  are  again  called  upon 
to  review  the  workmen's  compensation  act 
of  1911  (Laws  1911,  chap.  74,  p.  345;  3 
Rem.  &  Bal.  Code,  §§  -6604-1  et  seq.)  un- 
der appellant's  contention  that  the  act  is 
applicable  only  where  recovery  is  sought 
upon  the  ground  of  negligence  of  the  em- 
ployer. The  facts  upon  which  appellant 
predicates  his  right  of  action  are  these: 
On  January  22,  1912,  while  in  the  employ  of 
the  Seattle,  Renton,  &  Southern  Railway 
Company  as  motorman,  he  was  injured  in 
a  collision  between  two  of  the  railway  com- 
pany's trains.  Respondent  was  then  the 
president  of  the  railway  company,  and  it  is 
sought  to  hold  him  personally  responsible 
for  the  injuries  because  of  the  allegations 
that,  when  he  assumed  the  control  and  man- 
agement of  the  railway  company,  it  was 
equipped  with  a  block  signal  system  for  use 
in  foggy  weather,  which  respondent  negli- 
gently failed  to  operate;  and  that,  when 
complaint  was  made  by  the  train  operators 
of  the  great  danger  of  operating  the  trains 


PEET  v.  MILLS. 


359 


without  the  aid  of  the  block  signals,  a  prom- 
ise was  made  by  respondent  to  have  the 
block  signals  working  during  foggy  weather, 
which  promise  respondent  failed  to  keep, 
and  as  a  consequence  of  his  negligence  in  so 
failing  appellant  was  injured.  The  court 
below  sustained  a  demurrer  to  the  com- 
plaint, and,  appellant  electing  to  stand  upon 
his  complaint,  the  action  was  dismissed, 
and  this  appeal  taken. 

It  is  the  contention  of  appellant,  conced- 
ing he  was  at  the  time  of  his  injury  a 
"workman"  within  the  meaning  of  the  act, 
and  that  as  such  he  has  no  right  of  action 
against  the  railway  company,  his  employer, 
that  the  act  in  no  way  infringes  upon  his 
right  of  action  against  respondent,  because: 

( 1 )  The  act  itself  is  in  derogation  of  the 
common  law,  and,  since  it  does  not  express- 
ly  abolish   the  doctrine  of  negligence  as  a 
ground   of   recovery   except   as   against   em- 
ployers,   it    should    be    strictly    construed; 

(2)  even   though   it   be   admitted   that  the 
body  of  the  act  is  in  itself  sufficient  to  abol- 
ish  negligence  as   a  ground  of  recovery   of 
damages    against    all    persons    within    the 
scope  of  the  act,  the  title  to  the  act  is  not 
broad  enough  to  include  such   abolition  as 
against  anyone  except  employers.     Our  re- 
cent discussion  of  the  workmen's  compensa- 
tion act  of  1911,  as  found  in  State  ex  rel. 
Davis-Smith  Co.  v.  Clausen,  65  Wash.  156, 
37    L.R.A.(N.S-)     466,    117    Pac.    1101,    2 
N.  C.   C.  A.  823,  3  N.  C.  C.  A.   599,  and 
State   v.   Mountain   Timber    Co.    75    Wash. 
581,  L.R.A. — ,  — ,  135  Pac.  645,  renders  un- 
necessary   any    further    review    of   the    act, 
except   in    so   far   as   may   be   necessary   to 
notice,   the    contentions    here    raised.      The 
act  contains  its  own  declaration  of  legisla- 
tive policy,  in  reciting  in  §  1  that  the  com- 
mon-law system  in  dealing  with  actions  by 
employees    against    employers    for    injuries 
received   in    hazardous   employments   is   in- 
consistent with  the  modern  industrial  con- 
ditions,   uneconomic,    unwise,    and    unfair, 
and  that  as  the  welfare  of  the  state  depends 
upon  its  industries,  and  even  more  upon  the 
welfare    of    its    workingmen,    the    state    of 
Washington,   in    the   exercise   of    its   police 
and  sovereign  power,  declares  its  policy  to 
withdraw  all   phases  of  the  premises  from 
private  controversy,  regardless  of  questions 
of  fault  and  to  the  exclusion  of  every  other 
remedy,    proceeding,    or    compensation,    ex- 
cept as  provided   in  the  act,   "and  to  that 
end  all  civil  actions  and  civil  causes  of  ac- 
tion for  such  personal  injuries,  and  all  juris- 
diction of  the  courts  of  the  state  over  such 
causes,  are  hereby   abolished,   except   as   in 
this  act  provided." 

It  is  a  well-accepted  rule  that  remedial 
statutes,  seeking  the  correction  of  recog- 
nized errors  and  abuses  in  introducing  some 
L.R.A.1916A. 


new  regulation  for  the  advancement  of  the 
public  welfare,  should  be  construed  with 
regard  to  the  former  law  and  the  defects  or 
evils  sought  to  be  cured  and  the  remedy  pro- 
vided ;  that  in  so  construing  such  statutes 
they  should  be  interpreted  liberally,  to  the 
end  that  the  purpose  of  the  legislature  in 
suppressing  the  mischief  and  advancing  the 
remedy  be  promoted,  even  to  the  inclusion 
of  cases  within  the  reason,  although  out- 
side the  letter,  of  the  statute  (36  Cyc. 
1173);  and  that  in  construing  the  statute 
courts  will  look  to  the  old  law,  the  mischief 
sought  to  be  abolished,  and  the  remedy  pro- 
posed. State  v.  Stewart,  52  Wash.  61,  100 
Pac.  153,  17  Ann.  Cas.  411.  Starting  with 
these  basic  principles,  the  conclusion  is  evi- 
dent that,  in  the  enactment  of  this  new  law, 
the  legislature  declared  it  to  be  the  policy 
of  this  state  that  every  hazardous  industry 
within  the  purview  of  the  act  should  bear 
the  burden  arising  out  of  injuries  to  its  em- 
ployees; and  that  it  was  the  further  policy 
of  the  state  to  do  away  with  the  recognized 
evils  attaching  to  the  remedies  under  exist- 
ing forms  of  law,  and  to  substitute  a  new 
remedy  that  should  be  ample,  full,  and  com- 
plete, reaching  every  injury  sustained  by  any 
workman  while  employed  in  any  such  in- 
dustry, regardless  of  the  cause  of  the  injury 
or  the  negligence  to  which  it  might  be  at- 
tributed. We  can  conceive  of  no  language 
the  legislature  might  have  employed  that 
would  make  its  purpose  and  intent  more 
ascertainable  than  that  made  use  of  in  the 
1st  section  of  the  act.  To  say  with  appel- 
lant that  the  intent  of  the  act  is  limited  to 
the  abolishment  of  negligence  as  a  groum? 
of  action  against  an  employer  only  is  to 
overlook  and  read  out  of  the  act  and  its 
declaration  of  principles  the  economic 
thought  sought  to  be  crystalized  into  law, 
that  the  industry  itself  was  the  primal 
cause  of  the  injury,  and,  as  such,  should 
be  made  to  bear  its  burdens.  The  employer 
and  employee  as  distinctive  producing 
causes  are  lost  sight  of  in  the  greater  vision, 
that  the  industry  itself  is  the  great  pro- 
ducing cause,  and  that  the  cost  of  an  in- 
jury suffered  in  any  industry  is  just  as 
much  a  part  of  the  cost  of  production  as 
the  tools,  machinery,  or  material  that  enter 
into  that  production,  recognizing  no  dis- 
tinction between  the  injury  and  destruction 
of  machinery  and  the  injury  and  destruc- 
tion of  men,  in  so  far  as  each  is  a  proper 
charge  against  the  cost  of  production.  The 
legislature  in  this  act  was  dealing,  not  sc 
much  with  causes  of  action  and  remedies, 
as  with  this  great  economic  principle  that 
has  obtained  recognition  in  these  later 
years,  and  it  sought  in  the  use  of  language 
it  deemed  apt  to  embody  this  principle  into 
law.  That  in  so  doing  the  legislative  mind 


360 


WORKMEN'S  COMPENSATION. 


was  intent  upon  the  abolishment  of  all 
causes  of  action  that  may  have  theretofore 
existed,  irrespective  of  the  persons  in  favor 
of  whom  or  against  whom  such  right  might 
have  existed,  is  equally  clear  from  the  lan- 
guage of  §  5  of  the  act,  containing  a  sched- 
ule of  awards,  and  providing  that  each 
workman  injured  in  the  course  of  his  em- 
ployment should  receive  certain  compensa- 
tion, and  "such  payment  shall  be  in  lieu 
of  any  and  all  rights  of  action  whatsoever 
against  any  person  whomsoever."  Refer- 
ring again  to  §  1  of  the  act  and  the  declara- 
tion of  its  exercise  of  police  power  by  the 
state,  to  the  end  that  it  may  advance  the 
welfare  of  its  citizens  injured  in  any  haz- 
ardous undertaking,  we  find  this  expression 
of  intention:  ".  .  .  All  phases  of  the 
premises  are  withdrawn  from  private  con- 
troversy, and  sure  and  certain  relief  for 
workmen  injured  in  extra-hazardous  work, 
and  their  families  and  dependents,  is  here- 
by provided  regardless  of  questions  of  fault, 
and  to  the  exclusion  of  every  other  remedy, 
proceeding,  or  compensation,  except  as 
otherwise  prov^led  in  this  act;  and  to  that 
end  all  civil  actions  and  civil  causes  of  ac- 
tion for  such  personal  injuries,  and  all 
jurisdiction  of  the  courts  of  the  state  over 
such  causes,  are  hereby  abolished."  Laws 
1911,  p.  345,  §  1  (3  Rem.  &  Bal.  Code, 
1-1 ) .  For  these  reasons  we  are  of  the 


opinion  that  the  compensation  provided  by 
the  act  in  case  of  injury  to  any  workman 
in  any  hazardous  occupation  was  intended 
to  be  exclusive  of  every  other  remedy,  and 
that  all  causes  of  action  theretofore  exist- 
ing, except  as  they  are  saved  by  the  pro- 
visos of  the  act,  are  done  away  with. 

Upon  the  second  point  we  think  there 
is  no  room  for  argument.  The  first  clause 
of  the  title  indicates  that  it  is  an  act  re- 
lating to  the  compensation  of  injured  work- 
men in  any  industry  of  the  state,  and  the 
employment  of  the  language  further  on  in 
the  title,  "Abolishing  the  Doctrine  of  Neg- 
ligence as  a  Ground  for  Recovery  of  Dam- 
ages against  Employers,"  is  indicative  of 
the  evil  the  act  seeks  to  overcome  rather 
than  the  new  remedy  created.  The  title  is 
plainly  broad  enough  to  indicate  that  the 
act  is  intended  to  furnish  the  only  compen- 
sation to  be  allowed  workmen  subsequent 
to  its  becoming  law,  and  as  such  clearly  in- 
cludes any  and  all  rights  of  action  thereto- 
fore existing  in  which  such  compensation 
might  have  been  obtained. 

The  second  point  is  therefore  overruled, 
and  the  judgment  affirmed. 

Crow,  Ch.  J.,  and  Mount,  Parker,  and 
Fullerton,  JJ.,  concur. 

Petition  for  rehearing  denied. 


Annotation — Rights  and  remedies  under  compensation  acts  where  injuries 
were  caused  by  negligence  of  third  person. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

As  is  shown  in  PEET  v.  MILLS,  the  su- 
preme court  of  Washington  has  held  that 
the  Washington  act  takes  away  any  right 
of  action  that  the  injured  employee  may 
have  had  against  the  negligent  third 
person  whose  negligence  caused  his  in- 
jury. 

But  the  Federal  circuit  court  of  ap- 
peals has  subsequently  held  that  an  em- 
ployee injured  by  the  negligence  of  a 
third  person  has  a  right  of  action  against 
such  third  person,  although  he  has  no 
right  of  action  against  his  employer. 
Meese  v.  Northern  P.  R.  Co.  (1914)  127 
C.  C.  A.  622,  211  Fed.  254,  4  N.  C.  C.  A. 
819,  reversing  206  Fed.  222.  The  Fed- 
eral court  distinguished  PEET  v.  MILLS 
upon  the  ground  that  the  third  person 
sought  to  be  held  liable  for  damages  was 
in  fact  the  president  of  the  employer  rail- 
road, and  consequently  the  plaintiff  was 
attempting  to  hold  another  employee  of 
the  company  liable.  As  will  be  shown 
by  a  reading  of  the  opinion  in  PEET  v. 
L.R.A.1036A. 


MILLS  nothing  is  made  of  this  point  by 
the  Washington  court,  but  the  language 
is  general  and  is  in  direct  conflict  with 
the  decision  of  the  Federal  court. 

In  a  decision  by  a  lower  New  York 
court  it  was  held  that,  notwithstanding 
§  11  of  the  New  York  act  states  that 
the  liabilities  prescribed  by  this  statute 
shall  be  exclusive,  the  section  refers  sole- 
ly to  the  liabilities  of  the  employer,  and 
does  not  prevent  an  injured  employee 
from  seeking  redress  in  a  common-law 
action  against  negligent  third  parties 
whose  negligence  caused  the  injury. 
Lester  v.  Otis  Elevator  Co.  90  Misc.  649, 
153  N.  Y.  Supp.  1058. 

Under  the  Wisconsin  act  a  workman 
injured  by  the  negligence  of  a  third 
person  may  proceed  against  such  third 
person  for  damages,  notwithstanding 
both  he  and  the  workman's  employer 
were  under  the  provisions  of  the  com- 
pensation act.  Smale  v.  Wrought 
Washer  Mfg.  Co.  (1915)  160  Wis.  331, 
151  N.  W.  803. 

Under  the  New  Jersey  act,  the  work- 
man, by  duly  releasing  his  employer 


NEGLIGENCE  OF  THIRD  PERSON. 


361 


from  compensation,  does  not  release  a 
tort  feasor  whose  negligence  caused  the 
accident.  Jacowicz  v.  Delaware,  L.  & 
W.  K.  Co.  (1915)— N.  J.  — ,  92  Atl.  946. 

Nor  does  a  release  of  the  tort  feasor 
release  the  employer  from  his  liability 
to  compensation.  Newark  Paving  Co. 
v.  Klotz  (1914)  85  N.  J.  L.  432,  91  Atl. 
91,  affirmed  in  86  N.  J.  L.  690,  92  Atl. 
1086. 

But  under  the  English  act,  while  an 
injured  workman  may  proceed  either 
against  his  employer  or  against  the  third 
person  whose  negligence  caused  the  in- 
jury, there  cannot  be  a  recovery  both  of 
compensation  and  of  damages,  and  the 
recovery  of  one  terminates  the  right  to 
proceed  for  the  other.  Mahomed  v. 
Maunsell  (1907;  C.  C.)  124  L.  T.  Jo. 
(Eng.)  153,  1  B.  W.  C.  C.  269;  Tong 
v.  Great  Northern  R.  Co.  (1902;  Div. 
Ct.)  86  L.  T.  N.  S.  (Eng.)  802,  66  J.  P. 
677, 18  Times  L.  R,  566. 

If  a  workman  has  received  full  com- 
pensation from  his  employers  his  de- 
pendents cannot  thereafter  bring  an  ac- 
tion based  upon  fault  against  the  third 
person  whose  negligence  was  alleged  to 
have  caused  the  injury.  Gray  v.  North 
British  R.  Co.  (1914)  52  Scot.  L.  R.  144, 
8  B.  W.  C.  C.  373. 

Where  a  workman  in  a  colliery  also 
carries  on  a  small  farm  and  while  oc- 
cupied as  a  collier  was  injured  by  the 
negligence  of  a  third  person  and  re- 
covered compensation  from  his  employer, 
he  cannot  thereafter,  bring  an  action  for 
damages  against  the  third  party  and 
recover  damages  for  the  injury  which  he 
had  suffered  as  a  farmer  although  such 
damages  were  not  included  in  the  com- 
pensation. Woodcock  v.  London  &  N. 
W.  R.  Co.  [1913]  3  K.  B.  (Eng.)  139, 
82  L.  J.  K.  B.  N.  S.  921,  109  L.  T. 
N.  S.  253,  29  Times  L.  R,  566,  [1913] 
W.  N.  179,  [1913]  W.  C.  &  Ins.  Rep. 
563,  6  B.  W.  C.  C.  471. 

Acceptance  of  a  settlement  from  a 
third  person  whose  negligence  caused  the 
injury  prevents  the  workman  from  se- 
curing compensation  against  his  employ- 
er. Cripps's  Case  (1914)  216  Mass.  586, 
104  N.  E.  565,  Ann.  Gas.  1915B,  828. 

But  an  injured  workman  cannot,  by 
accepting  a  settlement  from  a  third 
party  whose  negligence  caused  his  injury, 
deprive  his  widow  of  her  right  to  com- 
pensation, where  the  workman  subse- 
quently dies  of  his  injury.  (Mass.) 
Ibid. 

The  acceptance  by  an  injured  work- 
man of  weekly  payments  from  a  per- 
son other  than  the  employer,  who  was 
alleged  to  be  liable  for  the  injury,  bars 
L.R.A.iniBA. 


any  claim  for  compensation  against  the 
employer,  although  the  liability  of  such 
third  person  was  not  admitted  and  no 
action  against  him  had  been  commenced. 
Page  v.  Burtwell  [1908]  2  K.  B.  (Eng.) 
758,  77  L.  J.  K.  B.  N.  S.  1061,  99  L. 
T.  N.  S.  542. 

And  the  fact  that  the  workman  ex- 
pressly reserved  his  right  to  compen- 
sation in  no  wise  affects  the  result.  Mul- 
ligan v.  Dick  (1904)  6  Sc.  Sess.  Gas. 
5th  Series,  126,  41  Scot.  L.  R.  77,  11 
Scot.  L.  T.  433;  Murray  v.  North  British 
R.  Co.  (1904)  6  Sc.  Sess.  Gas.  5th 
Series,  540,  41  Scot.  L.  R,  383,  11  Scot. 
L.  T.  746. 

But  an  employee  who,  having  received 
one  payment  under  the  act  without  quali- 
fications, which  payment  was  offered 
voluntarily  by  the  employer,  refused  to 
sign  any  other  receipt  except  subject  to 
the  reservation  "without  prejudice,"  sub- 
ject to  which  other  payments  had  been 
received,  does  not  exercise  the  option  re- 
ferred to  in  the  English  statute,  so  as 
to  preclude  him  from  proceeding  against 
other  persons  liable  for  the  injury. 
Oliver  v.  Nautilus  Steam  Shipping  Co. 
[1903]  2  K.  B.  (Eng.)  639,  72  L.  J. 
K.  B.  N.  S.  857,  89  L.  T.  N.  S.  318,  19 
Times  L.  R,  697,  52  Week.  Rep.  200, 
9  Asp.  Mar.  L.  Gas.  436. 

And  a  workman  injured  by  the  neg- 
lect of  a  third  person,  who  received  com- 
pensation from  the  employer,  expressly 
reserving  his  right  against  the  third 
person,  and  agreeing  that  if  he  recovers 
damages  he  will  reimburse  the  employer 
for  the  amount  of  compensation  re- 
ceived from  him,  has  not  "recovered 
compensation,"  so  as  to  preclude  him 
from  proceeding  against  the  third  per- 
son in  damages.  Wright  v.  Lindsay 
(1911)  5  B.  W.  C.  C.  31,  49  Scot.  L.  R. 
210. 

The  findings  by  the  arbitrator  that 
the  third  person  was  guilty  of  negli- 
gence will  not  be  disturbed  by  the  court 
of  appeals  if  there  is  some  evidence  to 
support  them.  Cutsforth  v.  Johnson 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.)  131, 
6  B.  W.  C.  C.  28,  108  L.  T.  N.  S.  138. 

Under  the  New  Jersey  act  the  employ- 
er has  no  right  of  subrogation  to  the 
claim  of  the  workman  against  the  tort 
feasor.  Newark  Paving  Co.  v.  Klotz 
(1913)  85  N.  J.  L.  432,  91  Atl.  91, 
affirmed  in  86  N.  J.  L.  690,  92  Atl.  1068. 

Nor  can  the  employer  recover  from  the 
tort  feasor  the  compensation  which  he 
has  paid  the  employee.  Interstate 
Teleph.  &  Teleg.  Co.  v.  Public  Service 
Electric  Co.  (1914)  86  N.  J.  L.  26,  90 
Atl.  1062,  5  N.  C.  C.  A.  524. 


362 


WORKMEN'S  COMPENSATION. 


But  under  the  Massachusetts  act  the 
association  in  which  the  deceased  is  in- 
sured may  enforce  the  right  given  to 
the  employee  of  proceeding  for  damages 
against  the  negligent  third  person. 
Turnquist  v.  Hannon  (1914)  219  Mass. 
560,  107  N.  E.  443.  The  court  said,  how- 
ever, that  this  right  does  not  amount  to 
the  right  of  equitable  subrogation. 

While  under  the  English  act  the  em- 
ployer is  entitled  to  indemnity  against 
any  third  person  whose  negligence  caused 
an  injury  to  his  workman,  for  which 
injury  the  employer  is  obliged  to  pay 
compensation.  Dickson  v.  Scott  [1914J 
W.  C.  &  Ins.  Rep.  (Eng.)  67,  30  Times 
L.  R.  256,  7  B.  W.  C.  C.  1007;  Daily 
News  v.  McNamara  &  Co.  (1913)  7  B. 
W.  C.  C.  11. 

Fellow  servants  of  an  injured  work- 
man, whose  negligence  caused  the  in- 
jury, are  liable  to  indemnify  the  employ- 
er for  any  compensation  which  he  is 
required  to  pay  to  the  injured  employee. 
Lees  v.  Dunkerley  Bros.  (1910)  103  L. 
T.  N.  S.  (Eng.)  467,  55  Sol.  Jo.  44;  Bate 
v.  Worsey  [1912]  W.  C.  Rep.  (Eng.) 
194,  5  B.  W.  C.  C.  276. 

But  an  employer,  however,  cannot 
maintain  an  action  for  indemnity  against 
a  third  person,  where  the  negligence  of 
his  own  employees,  together  with  that 
of  the  third  person,  caused  the  injury 
in  question.  Cory  v.  France,  F.  &  Co. 
[1911]  1  K.  B.  (Eng.)  114,  80  L.  J. 
K.  B.  N.  S.  341,  103  L.  T.  N.  S.  649, 

27  Times  L.  R.  18,  55  Sol.  Jo.  10,  11  Asp. 
Mar.  L.  Cas.  499. 

In  order  that  the  employer  may  re- 
cover indemnity  against  a  third  person, 
the  liability  of  such  person  to  the  in- 
jured workman  must  be  proven.  Kemp 
v.  Darngavil  Coal  Co.  [1909]  S.  C.  1314, 
46  Scot.  L.  R.  939;  Bradley  v.  Wallaces 
[1913]  3  K.  B.  (Eng.)  629,  82  L.  J. 
K.  B.  N.  S.  1074,  109  L.  T.  N.  S.  281, 
29  Times  L.  R.  705,  [1913]  W.  N.  239, 
[1913]  W.  C.  &  Ins.  Rep.  620,  6  B. 
W.  C.  C.  706;  Lankester  v.  Miller- 
Hetherington  (1910)  4  B.  W.  C.  C. 
(Eng.)  80. 

In  one  case,  however,  in  which  the 
workman  had  been  killed,  it  was  held 
that  the  negligent  third  person  was  lia- 
ble to  indemnify  the  employer  for  the 
compensation  which  he  was  obliged  to 
pay  to  the  workman's  dependent,  al- 
though such  dependent,  being  an  illegiti- 
mate daughter,  could  not  of  herself  have 
had  any  cause  of  action  against  the  neg- 
ligent person.  Smith's  Dock  Co.  v.  Read- 
head  [1912]  2  K.  B.  (Eng.)  323,  81  L.  J. 
K.  B.  N.  S.  808,  106  L.  T.  N.  S.  843, 

28  Times  L.  R.  397,  [1912]  W.  C.  Rep. 
217,  5  B.  W.  C.  C.  449,  [1912]  W.  N.  131. 
L.R.A.1916A. 


In  order  to  recover  indemnity  from  a 
negligent  third  person,  the  liability  of 
the  employer  to  pay  compensation  need 
not  be  established  by  the  award  of  an 
arbitrator.  Thompson  v.  North  East- 
ern Marine  Engineering  Co.  [1903]  1 
K.  B.  (Eng.)  428,  72  L.  J.  K.  B.  N.  S. 
222,  88  L.  T.  N.  S.  239,  19  Times  L. 
R.  206  (employer  recovered  compensa- 
tion paid  after  receiving  notice  of  the 
accident  and  of  the  claim  for  compen- 
sation, but  before  the  other  proceedings 
had  been  taken). 

In  an  action  in  rem  against  a  German 
vessel  brought  by  the  owners  of  an  Irish 
vessel  injured  by  a  collision  between  the 
two,  the  owners  of  the  latter  vessel  can- 
not include  in  the  damages  the  amount 
paid  in  payment  for  compensation  for  in- 
jury from  fright  before  the  collision 
took  place.  See  The  Rigel  (1912;  Adm.) 
106  L.  T.  N.  S.  (Eng.)  648,  [1912]  W. 
N.  56,  28  Times  L.  R.  251,  L.  R.  [1912] 
P.  99,  81  L.  J.  Prob.  N.  S.  86. 

Costs  of  the  compensation  proceed- 
ings, as  well  as  the  compensation  award- 
ed, may  be  recovered  as  an  indemnity 
by  the  employer  against  the  negligent 
third  person.  Great  Northern  R.  Co.  v. 
Whitehead  (1902)  18  Times  L.  R.  (Eng.) 
816. 

An  employee  under  the  Wisconsin  act 
may  assign  the  right  of  action  which 
he  has  against  the  negligent  third  person, 
and  the  assignee  may  sue  thereon  in  his 
own  name.  McGarvey  v.  Independent 
Oil  &  Grease  Co.  (1914)  156  Wis.  580, 
146  N.  W.  895,  5  N.  C.  C.  A.  903. 

The  right  of  action  which  an  employee 
has  against  the  third  person  whose  neg- 
ligence caused  his  injury  passes,  in  the 
case  of  the  death  of  the  employee,  to 
his  administrator.  Turnquist  v.  Hannon 
(1914)  219  Mass.  560,  107  N.  E.  443. 

Under  the  English  statute  the  notice 
required  by  rule  19  must  be  served  in 
an  action  for  indemnity,  although  the 
defendant  was  a  party  to  the  compen- 
sation proceedings.  Howard  v.  Driver 
(1903)  5  W.  C.  C.  (Eng.)  153;  Appleby 
v.  Horseley  Co.  [1899]  2  Q.  B.  (Eng.) 
521,  80  L.  T.  N.  S.  853,  68  L.  J.  Q. 
B.  N.  S.  892,  47  Week.  Rep.  614,  15 
Times  L.  R.  410. 

But  an  employer  may,  if  he  chooses, 
bring  an  action  for  indemnity  under  §  6, 
subsection  2,  independently  of  the  gen- 
eral rule  as  to  third  party  procedure. 
Nettleingham  &  Co.  v.  Powell  [1913]  3 
K.  B.  (Eng.)  209,  82  L.  J.  K.  B.  N.  S. 
911,  108  L.  T.  N.  S.  912,  29  Times  L. 
R.  578,  57  Sol.  Jo.  593,  6  B.  W.  C.  C. 
479,  [1913]  W.  C.  &  Ins.  Rep.  424. 

W.  M.  G. 


GAYNOR  v.  STANDARD  ACCI.  INS.  CO. 


363 


MASSACHUSETTS     SUPREME    JUDI- 
CIAL  COURT. 

EMMA  G.  GAYNOR,  Admrx.,  etc.,  of  Jo- 
seph  C.   Gaynor,   Deceased, 
v. 

STANDARD      ACCIDENT      INSURANCE 
COMPANY,   Insurer,  Appt. 

(217  Mass.  86,  104  N.  E.  339.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  waiter  at  banquet. 

A  waiter  employed  by  a  caterer  to  serve 
at  a  particular  banquet  for  a  specified 
price  and  transportation,  with  freedom  to 
.go  where  he  will  when  the  service  is  fin- 
ished, is  not  within  the  protection  of  a 
workmen's  compensation  act  which  provides 
that  employees  shall  include  every  person 
in  the  service  of  another  under  any  con- 
tract of  hire,  except  one  whose  employment 
is  but  casual,  or  is  not  in  the  usual  course 
of  the  trade,  business,  profession,  or  oc- 
cupation of  the  employer. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(February  27,  1914.) 

APPEAL  by  the  insurer  from  a  decree  of 
the  Superior  Court  for  Suffolk  County 
affirming  a  decision  of  the  Industrial  Acci- 
dent Board  and  ordering  insurer  to  pay  to 
a  dependent  widow  a  certain  amount  as 
compensation  for  the  death  of  her  husband, 
in  a  proceeding  under  the  workmen's  com- 
pensation act.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Dickson  &  Knowles,  for  ap- 
pellant: 

Deceased  was  a  person  whose  employment 
was  casual  within  the  meaning  of  the  work- 
men's compensation  act. 

Knight  v.  Bucknill  [1913]  W.  C.  &  Ins. 
Rep.  175,  57  Sol.  Jo.  245,  6  B.  W.  C.  C. 
160;  Hill  v.  Begg  [1908]  2  K.  B.  802,  24 
Times  L.  R.  711,  77  L.  J.  K.  B.  N.  S.  1074, 
99  L.  T.  N.  S.  104,  52  Sol.  Jo.  581 ;  Rennie 
v.  Reid,  45  Scot.  L.  R.  814,  1  B.  W.  C.  C. 
324;  Ritchings  v.  Bryant  [1913]  w.  C.  & 
Ins.  Rep.  171,  6  B.  W.  C.  C.  183;  M'Carthy 
v.  Norcott,  43  Ir.  Law  Times,  17;  Beven, 
Employers'  Liability  &  Workmen's  Compen- 
sation, 4th  ed.  457 ;  Aaronson's  Workmen's 
Compensation  Acts,  169;  Adshed  Elliott, 
Workmen's  Compensation  Acts,  6th  ed. ; 
Dawbarn,  Employers'  Liability  &  Work- 
men's Compensation,  4th  ed.  94. 

Mr.  Edward  M.  Sullivan,  for  appellee: 

The  deceased  employee,  Joseph  C.  Gay- 
nor, was  not,  as  a  matter  of  law,  a  person 
•whose  employment  was  casual  within  the 


Noto.  —  As  to  who  are  "casual"  employ- 
ees  within   the  meaning   of   the   workmen's 
compensation  act,  see  annotation  following 
this  case,  post,  365. 
L.R.A.1916A. 


meaning    of    the    workmen's    compensation 
act. 

Tombs  v.  Bomford,  106  L.  T.  N.  S.  823, 
[1912]  W.  C.  Rep.  229,  5  B.  W.  C.  C.  338; 
Dewhurst  v.  Mather  [1908]  2  K.  B.  754,  77 
L.  J.  K.  B.  N.  S.  i077,  99  L.  T.  N.  S.  568, 
24  Times  L.  R.  819,  52  Sol.  Jo.  681,  1  B. 
W.  C.  C.  328;  Johnston  v.  Monasterevan 
General  Store  Co.  [1909]  2  I.  R.  108,  42 
Ir.  Law  Times,  268,  2  B.  W.  C.  C.  183;  Cot- 
ter v.  Johnson,  45  Ir.  Law  Times,  259,  5  B. 
W.  C.  C.  568. 

Rugg,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

The  facts  in  this  case  are  that  the  de- 
ceased employee  was  a  waiter  employed,  at 
the  time  his  injuries  were  received,  by  T. 
D.  Cook  &  Company,  Incorporated,  caterers, 
having  a  regular  place  of  business  in  Bos- 
ton. It  had  a  contract  to  serve  a  banquet 
at  Mt.  Holyoke  College,  South  Hadley,  on 
October  9,  1912,  and  on  the  day  before  en- 
gaged the  deceased  for  service  at  that  ban- 
quet. Its  agent  told  the  deceased  that  if 
he  would  report  at  the  South  Station  in 
Boston  the  next  morning,  he  could  go  to 
South  Hadley  at  its  expense  with  the  other 
waiters.  The  wage  for  the  service  was  to  be 
$4,  together  with  transportation  from  Bos- 
ton to  South  Hadley  and  return.  The  de- 
ceased reported  at  7  o'clock  in  the  morning 
of  October  9th,  reached  South  Hadley  at 
half  past  11  o'clock  in  the  forenoon,  and 
was  injured  while  preparing  to  serve  the 
banquet.  This  was  the  first  time  he  had 
ever  worked  for  this  employer.  The  work 
was  finished  at  5  o'clock  in  the  afternoon, 
and  the  decedent  then  would  have  been  en- 
titled to  $4,  and  would  have  been  at  liberty 
either  to  return  to  Boston  at  the  expense 
of  his  employer  or  go  elsewhere  on  his  own 
account.  It  was  a  part  of  the  regular  busi- 
ness of  the  employer  to  provide  and  serve 
banquets,  but  for  such  service  no  men  were 
regularly  employed.  The  custom  of  the 
catering  business  is  that  such  banquets  are 
served  by  waiters  secured  for  the  particu- 
lar occasion.  Such  waiter  might  work  for 
different  employers  on  the  same  day,  or 
for  many  different  employers  on  successive 
days.  The  point  to  be  decided  is  whether 
the  deceased  was  an  employee  as  defined  in 
the  workmen's  compensation  act  (Stat. 
1911,  chap.  751,  pt.  5,  §  2)  as  follows: 
"  'Employee'  shall  include  every  person  in 
the  service  of  another  under  any  contract 
of  hire,  express  or  implied,  oral  or  written, 
.  .  .  except  one  whose  employment  is  but 
casual,  or  is  not  in  the  usual  course  of 
the  trade,  business,  profession,  or  occupa- 
tion of  his  employer." 

The  crucial  words  to  be  construed  are 
those  contained  in  the  exception  out  of  the 


364 


WORKMEN'S  COMPENSATION. 


class  of  employee  of  "one  whose  employment 
is  but  casual."  The  word  "casual"  is  in 
common  use.  Its  ordinary  signification,  as 
shown  by  the  lexicographers,  is  something 
which  comes  without  regularity,  and  is  oc- 
casional and  incidental.  Its  meaning  may 
be  more  clearly  understood  by  referring  to 
its  antonyms  which  are  "regular,"  "sys- 
tematic," "periodic"  and  "certain."  The 
significance  of  this  exception  in  our  act  is 
emphasized  by  its  contrast  with  the  pro- 
visions of  the  English  act,  which  is  different 
in  a  material  respect.  As  is  pointed  out  in 
Hill  v.  Begg  [1908]  2  K.  B.  802,  at  805,  its 
words  descriptive  of  the  workman  are  not 
one  whose  employment  is  but  casual,  but  one 
"whose  employment  is  of  a  casual  nature, 
and  .  .  .  otherwise  than  for  the  pur- 
poses of  the  employer's  trade  or  business." 
This  difference  in  phraseology  cannot  be 
treated  as  unintentional,  but  must  be  re- 
garded as  deliberately  designed.  See  Re- 
port of  Massachusetts  Commission  on  Com- 
pensation for  Industrial  Accidents,  53. 
Manifestly  its  effect  is  to  narrow  the  scope 
of  our  act  as  compared  with  the  English 
act.  Xo  one  whose  employment  is  "casual" 
can  recover  here,  while  there  one  whose  em- 
ployment is  "of  a  casual  nature"comes  with- 
in the  act,  provided  it  is  also  for  the  pur- 
pose of  the  employer's  trade  or  business.  It 
is  possible  that  a  distinction  as  to  the  char- 
acter of  the  employment  may  be  founded 
upon  the  difference  between  the  modifying 
word  "casual"  used  in  our  act,  and  the 
words  "of  a  casual  nature"  in  the  English 
act.  The  phrase  of  our  act  tends  to  indi- 
cate that  the  contract  for  service  is  the 
thing  to  be  analyzed,  in  order  to  determine 
whether  it  be  casual,  while  in  the  English 
act  the  nature  of  the  service  rendered  is 
the  decisive  test.  This  distinction  appears 
to  have  been  made  the  basis  of  decision  in 
Knight  v.  Bucknill,  6  B.  W.  C.  C.  160,  [1913] 
W.  C.  &  Ins.  Rep.  175,  57  Sol.  Jo.  245. 
This  consideration  is  to  be  noted  because 
the  English  act  was  followed  closely  in 
many  respects  by  our  act,  and  hence  even 
slight  differences  of  phraseology  may  be 
asaumea  to  have  significance. 

But  even  the  decisions  under  the  English 
act  are  plain  to  the  effect  that  employ- 
ment sucn  as  that  which  existed  in  the 
case  at  bar  there  would  be  treated  not  only 
as  casual  in  the  respect  of  the  contract  for 
hiring,  but  also  casual  in  its  nature.  In 
Hill  v.  Begg  [1908]  2  K.  B.  802,  24  Times 
L.  R.  711,  77  L.  J.  K.  B.  N.  S.  1074,  99  L. 
T.  N.  S.  104,  52  Sol.  Jo.  581,  the  employ- 
ment of  one  who  cleaned  the  windows  of  a 
private  dwelling  house  whenever  needed,  at 
irregular  intervals  of  about  six  weeks,  for 
a  period  of  two  years,  but  without  regular 
engagement,  was  held  to  be  "of  a  casual  na- 
L.R.A.1916A. 


ture."  See  also  Rennie  v.  Reid,  45  Scot.  I*. 
R.  814,  1  B.  W.  C.  C.  324,  and  Ritchings  v. 
Bryant,  6  B.  W.  C.  C.  183,  [1913]  W.  C. 
&  Ins.  Rep.  171,  where  the  facts  were  simi- 
lar and  like  decisions  were  made.  One  who 
had  been  employed  at  several  different  times 
to  do  odd  jobs  about  small  cottages,  and 
who  at  the  time  in  question  was  hired  to 
whitewash  some  of  them  at  a  fixed  price 
for  the  whole  work,  was  treated  as  plainly 
a  casual  laborer  in  Bargewell  v.  Daniel,  98 
L.  T.  N.  S.  257.  One  employed  to  cut  a 
hedge  for  a  gross  price  was  held  to  be  a 
casual  laborer  in  Toombs  v.  Bomford,  306 
L.  T.  N.  S.  823,  [1912]  W.  C.  Rep.  229,  5 
B.  W.  C.  C.  338.  To  the  same  effect  are 
Knight  v.  Bucknill,  6  B.  W.  C.  C.  160,  57 
Sol.  Jo.  245.  [1913]  W.  C.  &  Ins.  Rep.  175; 
Johnston  v.  Monasterevan  General  Store  Co. 
42  Tr.  Law  Times,  268,  [1909]  I.  R.  108,  2 
B.  W.  C.  C.  183;  Cotter  v.  Johnson,  45  Ir. 
Law  Times,  259,  5  B.  W.  C.  C.  568.  See 
also  O'Donnell  v.  Clare  County  Council,  47 
Ir.  Law  Times,  41,  43,  [1913]  W.  C.  &  Ins. 
Rep.  273,  6  B.  W.  C.  C.  457;  M'Carthy  v. 
Norcott,  43  Ir.  Law  Times,  17. 

It  is  argued  that  "or"  in  the  clause 
quoted  from  part  5,  §  2,  should  be  con- 
strued to  mean  "to  wit,"  or  identity  with 
or  explanation  of  that  which  goes  before. 
Sometimes  it  is  necessary  to  attribute  this 
signification  to  the  word  in  order  to  effect- 
uate the  plain  legislative  purpose.  Com. 
v.  Grey,  2  Gray,  501,  61  Am.  Dec.  476; 
Brown  v.  Com.  8  Mass.  59.  It  often  is 
construed  as  "and"  in  order  to  accomplish 
the  intent  manifested  by  the  entire  act  or 
instrument  in  which  it  occurs.  This  fre- 
quently is  necessary  in  the  interpretation 
of  wills.  McClench  v.  Waldron,  204  Mass. 
554,  557,  91  N.  E.  126;  Clarke  v.  Andover, 
207  Mass.  91,  96,  92  N.  E.  1013.  It  is  not 
synonymous  with  "and"  and  is  to  be  treated 
as  interchangeable  with  it  only  when  the 
obvious  sense  requires  it,  or  when  other- 
wise the  meaning  is  dubious.  But  the  word 
"or"  in  its  ordinary  use  and  also  in  ac- 
curate meaning  is  a  disjunctive  particle.  It 
marks  an  alternative,  and  not  a  conjunctive. 
It  indicates  one  or  the  other  of  two  or  sev- 
eral persons,  things,  or  situations,  and  not 
a  combination  of  them.  Com.  v.  Keenan, 
139  Mass.  193,  29  N.  E.  477;  Galvin  v. 
Parker,  154  Mass.  346,  28  N.  E.  244;  Dumont 
v.  United  States,  98  U.  S.  142,  25  L.  ed. 
65.  It  is  construed  as  having  a  different 
meaning  only  when  the  context  and  the 
main  purpose  to  be  accomplished  by  all  the 
words  used  seem  to  demand  it.  This  is  not 
such  a  case.  It  is  impossible  to  say  that 
the  legislature  did  not  intend  to  employ 
the  word  in  its  common  significance.  In- 
deed, from  what  has  been  said,  and  especial- 
ly from  the  deliberate  use  upon  this  point 


GAYXOR  v.  STANDARD  ACCI.  INS.  CO. 


365 


of  different  words  from  those  of  the  Eng- 
lish act,  which  our  act  follows  in  so  many 
particulars,  the  opposite  conclusion  is  nec- 
essary. 

It  would  be  difficult  to  conceive  of  em- 
ployment more  nearly  casual  in  every  re- 
spect than  was  that  of  the  employee  in  the 
case  at  bar.  The  engagement  was  for  a 
single  day  and  for  one  occasion  only.  It 
involved  no  obligation  on  the  part  of  the 
employer  or  employee  beyond  the  single  in- 
cident of  the  work  for  four  or  five  hours 
at  the  college.  That  would  have  had  its 
beginning  and  ending,  including  the  out- 
ward and  returning  journeys  (but  for  the 
unfortunate  accident),  within  a  period  of 
less  than  twenty-four  hours.  The  relation 
between  the  waiter  and  the  caterer  had  no 
connection  of  any  sort  with  any  events  in 


the  past.  Each  was  entirely  free  to  make 
other  arrangements  for  the  future,  untram- 
melod  by  any  express  or  implied  expecta- 
tions of  further  employment.  The  employ- 
ment was  not  periodic  and  regular,  as  in 

j  Gillen's  Case,  215  Mass.  96,  post,  371,  102 
N.  E.  346,  and  in  Dewhurst  v.  Mather 
[1908]  2  K.  B.  754,  77  L.  J.  K.  B.  X.  S. 
1077,  99  L.  T.  X.  S.  568,  24  Times  L.  R.  819, 
52  Sol.  Jo.  681,  1  B.  W.  C.  C.  328.  It 
was  in  the  course  of  the  regular  business 
of  the  employer.  But  under  our  act  that 
is  an  immaterial  circumstance  in  view  of 
the  other  fact  that  the  employment  was 

I  "but   casual."     The   conclusion   seems   irre- 
sistible that  the  employment  of  the  deceased 
was    "but    casual"    within    the   meaning    of 
those  words  in  our  act. 
Decree  reversed. 


Annotation — Who   are   "casual"   employees  within  the  meaning  of  the 
workmen's  compensation  act. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

The  difference  between  the  phrase- 
ology of  the  English  act  and  that  of 
Massachusetts  has  been  sufficiently  set 
out  in  the  opinion  in  GAYNOR  v.  STAND- 
ARD ACCI.  INS.  Co. 

An  employee  hired  for  no  fixed  du- 
ration of  time  and  for  no  particular  job, 
but  hired  only  as  the  employer  might 
wish  work  to  be  done,  is  not  within  the 
protection  of  the  Massachusetts  statute. 
Chevers's  Case  (1914)  219  Mass.  244, 
106  N.  E.  861  (teamster  employed  by  coal 
dealer  whenever  he  wanted  him,  but  only 
at  long  intervals). 

A  court  cannot  assume  that  an  employ- 
ment was  only  casual  where  the  Indus- 
trial Board  has  found  that  the  employ- 
ment was  not  casual,  and  only  excerpts 
of  the  evidence  are  contained  in  the 
record,  although  such  excerpts  tend  to 
show  that  the  employment  was  casual. 
King's  Case  (1915)  220  Mass.  290,  107 
N.  E.  959. 

Under  the  New  Jersey  act  an  employ- 
ment is  not  "casual"  where  one  is  em- 
ployed to  do  a  particular  part  of  a  ser- 
vice recurring  with  some  regularity,  with 
a  fair  expectation  of  a  continuance  for 
a  reasonable  period  (Sabella  v.  Brazil- 
eiro  (1914)  86  N.  J.  L.  505,  91  Atl. 
1032,  6  N.  C.  C.  A.  958,  long  shoreman 
frequently  called  upon  by  defendant  to 
serve  him  in  loading  and  unloading  the 
ship) ;  nor  is  the  employment  of  a  work- 
man for  an  indefinite  period  of  time  at 
so  much  a  day  (Scott  v.  Payne  Bros. 
(1914)  85  N.  J.  L.  446,  89  Atl.  927,  4 
L.R.A.1916A. 


N.  C.  C.  A.  682) ;  an  employment  for  an 
indefinite  time  to  do  piecework  may  be 
found  not  to  be  casual  (Shaeffer  v.  De 
Grottola  (1914)  85  N.  J.  L.  444,  89  Atl. 
921,  4  N.  C.  C.  A.  582,  affirmed  in  — 
N.  J.  L.  — ,  94  Atl.  1103). 

A  charwoman  employed  regularly  every 
Friday  and  every  other  Tuesday  for  over 
eighteen  months  is  not  in  the  casual 
employment  of  her  employer.  Dew- 
hurst  v.  Mather  [1908]  2  K.  B.  (Eng.) 
754,  77  L.  J.  K.  B.  N.  S.  1077,  99  L. 
T.  N.  S.  568,  24  Times  L.  R.  819,  52 
Sol.  Jo.  681,  1  B.  W.  C.  C.  328. 

Window  washers  or  cleaners  have  been 
held  not  to  be  in  the  regular  employment, 
but  only  in  the  casual  employment  of 
their  employers,  so  as  not  to  be  within 
the  provisions  of  the  compensation  act. 
Hill  v.  Begg  [1908]  2  K.  B.  (Eng.)  802, 
77  L.  J.  K.  B.  N.  S.  1074,  99  L.  T.  N.  S. 
104,  24  Times  L.  .R.  711,  52  Sol.  Jo. 
581;  Ritchings  v.  Bryant  [1913]  W.  C. 
&  Ins.  Rep.  (Eng.)  171,  6  B.  W.  C.  C. 
183. 

The  work  of  cutting  down  or  lopping 
off  trees,  which  is  done  by  a  workman 
incidentally  in  connection  with  other 
work,  is  casual.  M'Carthy  v.  Norcott 
(1908)  43  Ir.  Law  Times,  17;  Knight  v. 
Bucknill  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  175,  57  Sol.  Jo.  245,  6  B.  W. 
C.  C.  160. 

But  a  workman  employed  each  sea- 
son for  several  weeks  or  even  months  at 
a  time,  to  do  work  in  the  employer's 
woods  cutting  underwood,  trimming 
trees,  etc.,  and  paid  by  the  week,  not 
losing  any  time  because  of  rain,  is  not 
a  casual  laborer.  Smith  v.  Buxton 


366 


WORKMEN'S  COMPENSATION. 


(1915)  84  L.  J.  K.  B.  N.  S.  (Eng.)  697, ;  received  while  engaged  in  trimming  the 
112  L.  T.  N.  S.  893  [1915]  W.  C.  &  Ins.    hedge   for  pay   at   the   request   of   the 


Rep.  126,  8  B.  W.  C.  C.  196. 


farmer,  on  a  complaint  that  the  hedge 


The  owner  of  a  small  garden  which  is  was  so  tall  as  to  shade  his  garden, 
surrounded  by  a  high  hedge  on  the  land  Tombs  v.  Bomford  [1912]  W.  C.  Rep. 
of  a  farmer  is  entitled  to  compensation  (Eng.)  229,  106  L.  T.  N.  S.  823,  5  B.  W. 
from  the  latter  for  personal  injuries  I  C.  C.  338.  W.  M.  G. 


WISCONSIN  SUPREME  COURT. 

NORTHWESTERN   IRON   COMPANY, 
Respt., 

v. 

INDUSTRIAL     COMMISSION     OF     WIS- 
CONSIN et  al.,  Appts. 

(154  Wis.  97,  142  N.  W.  271.) 

Master  and  servant  —  workman's  com- 
pensation act  —  wife  in  foreign  coun- 
tries —  living  together. 

1.  A  wife  who  was  left  in  a  foreign  land 
when  her  husband  came  to  this  country  is 
within  the  provisions  of  a  workman's  com- 
pensation  act   providing  a  benefit   for   per- 
sons   wholly    dependent    on     an     employee 
killed  in  service,  that  a  wife  shall  be  con- 
clusively presumed  to  be  solely  and  wholly 
dependent   upon   her   husband,    with   whom 
she  was  living  at  the  time  of  his  death,  if 
he   sends   her    money    for   her   support,    al- 
though he  has  been  here  several  years,  and 
no  definite  plan  for  reunion  exists. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  determination  by  Commission. 

2.  Whether  or  not  a  servant  accidentally 
killed    in    his    employment,    and    his    wife, 
whom   he   left   in   a    foreign   country,    were 
living   together,   is   a    question   of   fact,   to 
be  determined  by  the  Commission  under  the 
workmen's  compensation  act. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Trial   —   question    of   law   —   man    and 

wife  living  together. 

3.  The   court  must   determine   what   con- 
stitutes living  together  under  a  provision  in 
a    workman's    compensation    act    providing 
that  a  wife   shall  be  presumed  wholly  de- 
pendent upon  her  husband  with  whom  she  is 
living  at  the  time  of  his  death. 

For  other  cases,  see   Courts,  I.  c,  in  Dig. 

1-52  N.  8. 
Same  —  intent  —  question  of  fact. 

4.  Intent  is  ordinarily  a  question  of  fact. 
For    other    cases,    see    Trial,    II.    c,    5,    in 

Dig.  1-52  N.  S. 

(Barnes,   J.,   dissents   in   part.) 
(May  31,  1913.) 

Note.  —  As  to  when  husband  and  wife  are 
living  together  within  the  meaning  of  the 
compensation  act,  see  annotation  following 
this  case,  post,  370. 
L.R.A.1916A. 


A  PPEAL  by  defendants  from  a  judgment 
xjL  of  the  Circuit  Court  for  Dane  County 
in  plaintiff's  favor  in  a  proceeding  to  set 
aside  an  award  of  the  Industrial  Commis- 
sion in  a  proceeding  to  recover  damages  for 
the  death  of  one  of  plaintiff's  employees  for 
which  it  was  alleged  to  be  responsible. 
Reversed. 


Statement  by  Kerwin,  J. : 

This  is  an  appeal  by  defendants  from  a- 
judgment  entered  February  14,  1913,  setting 
aside  an  award  of  the  Industrial  Commis- 
sion made  July  1,  1912.  The  award  pro- 
vided that  plaintiff  pay  to  the  defendant 
Jela  Nevadjic  the  sum  of  $2,100  on  account 
of  the  death  of  her  husband  by  reason  of  in- 
juries accidentally  sustained  by  him  while- 
in  the  employ  of  the  plaintiff.  The  award 
was  based  on  a  finding  of  the  Commission 
that  Jela  Nevadjic  was  living  with  her  hus- 
band at  the  time  of  his  death.  The  circuit 
court  decided  first  that,  although  the  finding 
of  the  Commission  that  Jela  Nevadjic  wa& 
living  with  her  husband  at  the  time  of  his- 
death  was  erroneous,  still  the  award  should 
be  confirmed  because  there  was  evidence  to 
support  the  Commission's  finding  of  total 
dependency  without  regard  to  the  statutory 
presumption. 

A  motion  for  rehearing  was  made  in  the- 
circuit  court,  based  upon  an  affidavit  of  the- 
plaintiff's  attorney,  setting  forth  corre- 
spondence with  the  chairman  of  the  In- 
dustrial Commission,  showing  that  the  Com- 
mission "determined  that  the  wife  was  total- 
ly dependent  simply  because  of  the  statu- 
tory presumption  following  its  finding  of 
fact  that  Nevadjic  was  living  with  his  wife- 
at  the  time  of  his  death."  On  rehearing,  the 
circuit  court  adhered  to  its  decision 
that  Jela  Nevadjic  was  not  living  with  her 
husband  at  the  time  of  his  death,  but  found 
that  the  Commission's  finding  of  .total  de- 
pendency was  based  solely  upon  the  statu- 
tory presumption,  and  further  found  that 
in  making  such  findings  and  the  award  the 
Commission  acted  without  or  in  excess  of 
its  powers,  and  entered  judgment  setting 
aside  the  award  of  the  Commission.  The  In- 
dustrial Commission  made  the  following 
findings:  "That  on  February  25,  1912,. 
while  in  the  employ  of  the  respondent. 


NORTHWESTERN  IRON  CO.  v.  INDUSTRIAL  COMMISSION. 


367 


[plaintiff  here],  one  Prokopia  Nevadjic  ac- 
cidentally sustained  personal  injuries  by 
reason  of  a  car  of  ore  being  dumped  upon 
him,  from  the  result  of  which  he  died,  at 
Mayville,  Wisconsin;  .  .  .  that  the  said 
deceased,  Prokopia  Nevadjic,  came  to  this 
country  some  three  years  and  three  months 
prior  to  his  death,  leaving  in  his  native 
country,  Austria-Hungary,  in  the  province 
of  Korenica,  a  wife  and  one  child;  after 
coming  to  this  country,  the  said  deceased, 
Prokopia  Nevadjic,  did  not  return  to  his 
wife,  but  did  occasionally  send  her  money, 
and  on  February  8,  1912,  shortly  before  his 
death,  sent  her  the  sum  of  $21;  that  de- 
ceased could  not  write,  and  the  wife  of  de- 
ceased could  not  write,  but  they  correspond- 
ed with  each  other  through  the  aid  of 
friends;  and  we  find  from  these  facts  that 
the  deceased,  Prokopia  Nevadjic,  and  the 
above-named  Jela  or  Jelena  Nevadjic,  his 
wife,  were  living  together  at  the  time  of 
the  death  of  said  deceased,  and  the  said  Jela 
or  Jelena  Nevadjic  was  solely  and  wholly  de- 
pendent for  support  upon  the  deceased, 
Prokopia  Nevadjic." 

It  also  appears  from  the  evidence  that 
Prokopia  Nevadjic  came  to  Mayville  and 
"was  employed  by  the  Northwestern  Iron 
Company  on  the  7th  of  November,  1911  ;" 
that  he  sent  $30  to  his  wife  "when  he  first 
came  to  Mayville;"  that  he  said  if  "I  don't 
send  money  every  three  months  my  wife 
can't  make  a  living;"  that  he  sent  $21  to 
his  wife  February  8,  1912,  an  interval  of 
exactly  three  months  from  the  time  of  his 
previous  remittance. 

Messrs.  Kahn  &  Murphy,  for  appel- 
lant Nevadjic: 

The  widow  was  living  with  her  husband  at 
the  time  of  his  death. 

Ex  parte  Gilmore,  3  C.  B.  967 ;  Blackwell 
v.  Pennant,  9  Hare,  551,  22  L.  J.  Ch.  N.  S. 
155,  16  Jur.  420;  Cowan  v.  Cowan,  10  Colo. 
540,  16  Pac.  215;  Allgood  v.  Williams,  92 
Ala.  551,  8  So.  722;  Shaw  v.  Shaw,  98  Mass. 
158;  Bristol  v.  Rutland,  10  Vt.  574;  Carey's 
Appeal,  75  Pa.  201;  Fry's  Election  Case,  71 
Pa.  302,  10  Am.  Rep.  698;  Hayes  v.  Hayes, 
74  111.  312. 

Messrs.  Walter  C.  Owen,  Attorney  Gen- 
eral, and  Byron  II.  Stebbins,  First  As- 
sistant Attorney  General,  for  appellant  In- 
dustrial Commission: 

A  mere  temporary  absence  does  not  termi- 
nate the  living  together,  because  there  is  no 
such  intent. 

Ex  parte  Gilmore,  3  C.  B.  967 ;  Phillips  v. 
Phillips,  22  Wis.  256;  Thompson  v.  Thomp- 
son, 53  Wis.  153,  10  N.  W.  166:  Williams  v. 
Williams,  122  Wis.  27,  99  N.  W.  431  ;  Burk 
v.  Burk,  21  W.  Va.  445;  Miller  v.  Sovereign 
Camp,  W.  0.  W.  140  Wis.  505,  28  L.R.A. 
L.R.A.1916A. 


(N.S.)    178,  133  Am.  St.  Rep.  1095,  122  N. 
W.  1126. 

The  presumption  is  that  husband  and  wife 
"are  living  and  cohabiting  together." 

Smith  v.  Smith,  35  Ind.  App.  610,  74  N. 
E.  1008;  Jonas  v.  Hirshburg,  18  Ind.  App 
581,  48  N.  E.  656;  State  ex  rel  Cotfey  v. 
Chittenden,  112  Wis.  569,  88  N.  W.  587*. 

The  Commission  had  "reasonable  ground 
for  the  decision  made." 

Clancy  v.  Fire  &  Police  Comrs.  150  Wis. 
(530,  138  N.  W.  109;  State  ex  rel.  Milwaukee 
Medical  College  v.  Chittenden,  127  Wis 
468,  107  N.  W.  500;  Minneapolis  St.  P.  & 
S.  Ste.  M.  R.  Co.  v.  Railroad  Commission, 
136  Wis.  146,  17  L.R.A.(N.S.)  821,  116  N. 
W.  905. 

The  question  was  one  of  fact. 

Traveler's  Ins.  Co.  v.  Hollauej.  131  Wis. 
371,  111  N.  W.  527;  Cole  v.  Cole,  27  Wis. 
531;  Thompson  v.  Thompson,  53  Wis.  153, 
10  N.  W.  166;  Morrison  v.  Madison,  96 
Wis.  452,  71  N.  W.  882;  Ennis  v.  M.  A.  Han- 
na  Dock  Co.  148  Wis.  655,  134  N.  W.  1051; 
Hoff  v.  Hackett,  148  Wis.  32,  134  N.  W. 
132. 

Mr.  Edward  G.  Wiliner,  for  respondent: 

The  question  of  dependency  and  the  ex- 
tent thereof  is  always  one  of  fact,  and  the 
survivors,  including  the  widow,  husband,  or 
children,  must  establish  their  claims  to 
compensation  by  proving  the  extent  of  their 
dependency  as  a  matter  of  fact. 

New  Monckton  Collieries  v.  Kelling 
[1911]  A.  C.  648,  80  L.  J.  K.  B.  N.  S.  1205, 
105  L.  T.  N.  S.  337,  27  Times  L.  R.  551,  55 
Sol.  Jo.  687  [1911]  W.  N.  176,  4  B.  W.  C. 
C.  332. 

"Living  together  as  husband  and  wife"  re- 
quires dwelling  together,  cohabiting. 

18  Am.  &  Eng.  Enc.  Law,  823;  Yardley's 
Estate,  75  Pa.  207;  Sullivan  v.  State,  32 
Ark.  187;  State  v.  Intoxicating  Liquors,  54 
Me.  565;  Tracy  v.  Tracy,  62  N.  J.  Eq.  807, 
48  Atl.  533;  butcher  v.  Dutcher,  39  Wis. 
651;  Mutual  Ben.  L.  Ins.  Co.  v.  Robison,  22 
L.R.A.  325,  7  C.  C.  A.  444,  19  U.  S.  App. 
266,  58  Fed.  723;  Paltrovitch  v.  Phoenix  Ins. 
Co.  68  Hun,  304,  23  N.  Y.  Supp.  38;  Thomas 
v.  State,  28  Tex.  App.  300,  12  S.  W.  1098; 
Burnett  v.  State,  44  Tex.  Crim.  Rep.  226.  70 
S.  W.  207:  Hanson  v.  Hanson,  111  Mass. 
158 ;  Kendall  v.  Miller,  47  How.  Pr.  446. 

Workmen's  compensation  acts  ought  to  be 
construed  not  in  a  technical,  but  in  a 
popular,  sense. 

Smith  v.  Coles  [1905]  2  K.  B.  827,  54 
Week.  Rep.  81,  22  Times  L.  R.  5.  75  L.  J. 
K.  B.  N.  S.  16,  93  L.  T.  N.  S.  754:  Rogers 
v.  Cardiff  Corp.  8  W.  C.  C.  51,  [1905]  2  K. 
B.  832,  54  Week.  Rep.  35,  22  Times  L.  R.  9, 
75  L.  J.  K.  B.  N.  S.  22,  4  L.  G.  R.  1,  70  J. 
P.  9,  93  L.  T.  N.  S.  683;  Adams  v.  Shad- 
dock [1905]  2  K.  B.  859,  54  Week  Rep.  97, 


368 


WORKMEN'S  COMPENSATION. 


22  Times  L.  R.  15,  75  L.  J.  K.  B.  N.  S.  7,  93 
L.  T.  N.  S.  725. 

The  Commissioner's  error  was  one  of  law, 
and  the  judgment  of  circuit  court  should  bo 
affirmed. 

Travelers'  Ins.  Co.  v.  Hallauer,  131  Wis. 
371,  111  N.  W.  527;  State  v.  Schmidt,  138 
Wis.  53,  119  N.  W.  647. 

Kerwin,  J.,  delivered  the  opinion  of  the 
court: 

The  judgment  of  the  court  below,  setting 
aside  the  award  of  the  Industrial  Commis- 
sion, rests  upon  the  conclusion  of  the  court 
that  the  Industrial  Commission  acted  with- 
out or  in  excess  of  its  powers  in  finding  that 
the  appellant  Jela  Nevadjic  was  living  with 
her  husband  at  the  time  of  his  death.  The 
question,  therefore,  presented  on  this  ap- 
peal is  whether  the  Commission  acted  with- 
out or  in  excess  of  its  powers  in  making 
such  finding. 

Subsection  3,  §  2394—9,  of  the  workmen's 
compensation  act  provides  a  death  benefit 
"in  case  the  deceased  employee  leaves  a  per- 
son or  persons  wholly  dependent  on  him  for 
support." 

Subsection  3,  §  2394 — 10,  provides: 

"3.  The  following  shall  be  conclusively 
presumed  to  be  solely  and  wholly  dependent 
for  support  upon  a  deceased  employee: 

"(a)  A  wife  upon  a  husband  with  whom 
she  is  living  at  the  time  of  his  death. 

"(b)  A  husband  upon  a  wife  with  whom 
he  is  living  at  the  time  of  her  death. 

"(c)  A  child  or  children  under  the  age 
of  eighteen  years  (or  over  said  age,  but 
physically  or  mentally  incapacitated  from 
earning ) ,  upon  the  parent  with  whom  he  or 
they  are  living  at  the  time  of  the  death  of 
such  parent,  there  being  no  surviving  de- 
pendent parent.  In  case  there  is  more  than 
one  child  thus  dependent,  the  death  benefit 
shall  be  divided  equally  among  them. 

"In  all  other  cases  questions  of  entire  or 
partial  dependency  shall  be  determined  in 
accordance  with  the  fact,  as  the  fact  may 
be  at  the  time  of  the  death  of  the  employee. 

The  Industrial  Commission  in  its  opinion 
filed  in  the  case  with  its  findings  defined 
the  phrase  "living  together"  thus:  "We 
are  of  the  opinion  that  the  husband  and 
wife  are  to  be  considered  as  living  together, 
even  though  one  or  the  other  may  be  absent 
from  the  home  for  a  considerable  length  of 
time  and  separated  by  great  distance;  they 
are  living  together  when  they  are  not  living 
apart,  when  there  is  neither  legal  nor  actual 
separation  of  the  bonds  of  matrimony."  We 
have  been  cited  to  no  authority  directly  in 
point  and  have  found  none  ~,vhere  the  words 
"living  together"  have  been  construed  in  a 
statute  similar  to  the  one  now  before  us. 
L.R.A.1916A. 


Authorities  are  cited  by  counsel  where  the 
words  "living  together"  and  similar  phrases 
have  been  defined  in  standard  dictionaries, 
and  in  statutes  quite  different  from  the  one 
now  before  us.  And  it  is  argued  by  coun- 
sel for  respondent  that,  giving  the  words  the 
meaning  ascribed  to  them  according  to  the 
common  and  approved  usage  of  the  lan- 
guage, they  import  a  dwelling  together  in 
the  same  place. 

In  giving  construction  to  such  statutes, 
words  are  to  be  taken  and  construed  in  the 
sense  in  which  they  are  understood  in  com- 
mon language,  taking  into  consideration  the 
text  and  subject-matter  relative  to  which 
they  are  employed. 

It  has  been  ruled  in  England  that  terms 
used  in  the  workmen's  compensation  acts 
should  be  given  their  practical,  popular 
meaning,  and  that  a  technical  construction 
should  not  be  placed  upon  them.  Smith  v. 
Coles  [1905]  2  K.  B.  827,  54  Week.  Rep.  81, 
22  Times  L.  R.  5,  75  L.  J.  K.  B.  N.  S.  16, 
93  L.  T.  N.  S.  754;  Rogers  v.  Cardiff  Corp. 
8  W.  C.  C.  51  [1905]  2  K.  B.  832,  54  Week. 
Rep.  35,  22  Times  L.  R.  9,  75  L.  J.  K.  B.  N. 
S.  22,  4  L.  G.  R.  1,  70  J.  P.  9,  93  L.  T.  N.  S. 
683;  Adams  v.  Shaddock  [1905]  2  K.  B. 
859,  54  Week.  Rep.  97,  22  Times  L.  R.  15, 
75  L.  J.  K.  B.  N.  S.  7,  93  L.  T.  N.  S.  725. 

Proof  of  total  dependency  is  dispensed 
with  under  the  statute  where  the  husband 
and  wife  are  "living  together"  at  the  time 
of  the  death  of  the  injured  employee.  It 
seems,  therefore,  quite  obvious  that  the 
legislature  intended  by  the  use  of  the  words 
to  include  all  cases  where  there  is  no  legal 
or  actual  severance  of  the  marital  relation, 
though  there  may  be  physical  separation  of 
the  parties  by  time  and  distance.  The 
"living  together"  contemplated  by  the  stat- 
ute, we  think,  was  intended  to  cover  cases 
where  no  break  in  the  marriage  relation 
existed,  and  therefore  physical  dwelling  to- 
gether is  not  necessary,  in  order  to  bring 
the  parties  within  the  words  "living  to- 
gether." There  must  be  a  legal  separation 
or  a.n  actual  separation  in  the  nature  of  an 
estrangement,  else  there  is  a  "living  to- 
gether" within  the  meaning  of  the  statute. 
This  seems  to  be  the  reasonable  and  prac- 
tical construction  of  the  law,  and  the  one 
which  we  think  the  legislature  intended.  If 
the  law  should  receive  the  construction  that 
there  must  be  physical  dwelling  together  in 
order  to  satisfy  the  statute,  it  is  plain  that 
the  purpose  of  the  law  would  in  many  cases 
be  defeated,  because  in  many  cases  the 
spouse  may  be  absent  from  home  for  long 
intervals,  although  there  be  no  break  in  the 
marriage  relation,  no  estrangement,  and  no 
intent  to  separate  or  sever  the  existing  re- 
lation, or  change  the  relations  or  obligations 
created  by  the  marriage  contract. 


NORTHWESTERN  IRON  CO.  v.  INDUSTRIAL  COMMISSION. 


369 


The  circuit  judge  below  conceded  in  his 
opinion  in  the  record  that  temporary  ab- 
sence from  home  or  from  the  place  at  which  j 


was  a  question  of  fact  to  be  tried  and  de- 
termined by  the  Commission.  Travelers' 
Ins.  Co.  v.  Hallauer,  131  Wis.  371,  111  N. 


the  other  spouse  resides  would  not  warrant  I  W.  527.     What  constitutes  "living  together" 
a  finding  that  the  wife  was  not  living  with  I  where  the  facts  are  undisputed  and  no  con- 


the  husband,  if  death  occurred  during  such 
temporary  absence,  and  that  there  is  no 
fixed  rule  as  to  the  length  of  time  that  will 
take  the  case  out  of  the  statutory  presump- 
tion of  dependency.  But  he  further  held  that 
the  limit  as  to  time  had  been  exceeded  in 
the  instant  case.  In  this  conclusion  we  think 
the  court  below  erred.  There  seems  to  be 
no  solid  reason  why  an  absence  of  a  month 
or  a  year  or  less  should  require  a  different 
construction  of  the  words  "living  together" 
than  an  absence  of  three  years  and  three 
months  or  more.  The  question  does  not 
turn  on  time  or  distance,  but  upon  the 
nature  and  character  of  the  absence  and  the 
intention  of  the  parties  respecting  it.  In- 
tent is  an  important  element  in  determining 
the  nature  of  absence.  Ex  parte  Gilmore,  3 
C.  B.  967;  Williams  v.  Williams,  122  Wis. 
27,  99  N.  W.  431;  Thompson  v.  Thompson, 
53  Wis.  153,  10  N.  W.  166;  Miller  v.  Sov- 
ereign Camp,  W.  W.  140  Wis.  505,  28  L.R.A. 
(N.S.)  178,  133  Am.  St.  Rep.  1095,  122  N. 
W.  1126. 

The  status  of  the  parties  was  established 
by  their  relation  as  husband  and  wife  in 
their  native  country.  That  relation,  hav- 
ing once  existed,  is  presumed  to  continue. 
State  ex  rel.  Coffey  v.  Chittenden,  112  Wis. 
569,  88  N.  W.  587.  It  may  well  be  that 
long-continued  physical  separation,  unex- 
plained, might  raise  an  inference  that  the 
parties  were  not  living  together  within  the 
meaning  of  the  statute  under  consideration, 
but  the  proof  here  is  ample  to  rebut  such 
inference.  The  intent  a/id  purpose  of  the 
separation  is  explained,  and  the  evidence 
shows  that  the  marital  relation  continued 
without  break.  Time  and  distance  alone 
cannot  sever  such  relation  without  intent  or 
purpose  to  do  so. 

The  findings  of  the  Industrial  Commission 
on  questions  of  fact  should  not  be  disturbed 
if  there  is  a  substantial  basis  -for  the  de- 
cision. State  ex  rel.  N.  C.  Foster  Lumber 
Co.  v.  Williams,  123  Wis.  61,  100  N.  W. 
1048;  State  ex  rel.  Milwaukee  Medical  Col- 
lege v.  Chittenden,  127  Wis.  468,  107  N.  W. 
500.  But  it  is  claimed  by  counsel  for  re- 
spondent that  the  finding  to  the  effect  that 
the  deceased  and  his  wife  were  "living  to- 
gether" is  a  conclusion  of  law,  and  not  a 
finding  of  fact,  and  that  to  hold  otherwise 
would  permit  t*he  Industrial  Commission, 
a  quasi  judicial  body,  to  determine  the  legal 
significance  of  any  and  all  parts  of  the  law, 
and  conclude  the  parties  from  a  judicial 
construction  of  the  law  by  the  courts. 

Whether  the  parties  were  living  together 
L.R.AJ916A.  24 


flicting  inferences  can  be  drawn  from  the 
evidence  is  a  question  of  law  for  the  court. 

In  the  instant  case  the  Commission  made 
its  findings  upon  the  facts  leading  up  to 
the  conclusion  of  ultimate  fact  which  it 
stated,  viz.,  that  the  parties  were  living  to- 
gether. The  facts  found  formed  the  basis 
for  the  conclusion  that  the  parties  were  liv- 
ing together,  and  the  Commission  had 
reasonable  ground  for  the  decision.  Clancy 
v.  Fire  &  Police  Comrs.  150  Wis.  630, 138  N. 
W.  109.  "Findings  of  fact,"  as  recognized 
by  the  decisions  of  this  court,  mean  findings 
of  ultimate,  rather  than  evidentiary,  facts. 
Briere  v.  Taylor,  126  Wis.  347,  105  N.  W. 
817;  Chippewa  Bridge  Co.  v.  Durand,  122 
Wis.  85,  106  Am.  St.  Rep.  931,  99  N.  W. 
603 ;  McDougal  v.  New  Richmond  Roller 
Mills  Co.  125  Wis.  121,  103  N.  W.  244; 
Travelers'  Ins.  Co.  v.  Hallauer,  supra;  Cole 
v.  Cole,  27  Wis.  531.  It  is  only  when  the 
facts  are  undisputed  and  no  conflicting  in- 
ference respecting  the  ultimate  fact  can  be 
drawn  therefrom  that  the  question  becomes 
one  of  law.  Ennis  v.  M.  A.  Hanna  Dock 
Co.  148  Wis.  655,  134  N.  W.  1051. 

The  question  of  intent  was  an  important 
factor  in  determining  whether  the  parties 
were  living  together.  This  is  ordinarily  a 
question  of  fact.  Hoff  v.  Hackett,  148  Wis. 
32,  134  N.  W.  132.  We  think  the  inference 
drawn  by  the  Commission  that  Jela  Nevad- 
jic  and  her  husband  were  living  together  at 
the  time  of  his  death  is  supported  by  the  es- 
tablished facts. 

The  judgment  is  reversed,  and  the  cause 
remanded  to  the  Circuit  Court,  with  instruc- 
tions to  affirm  the.  award  of  the  Industrial 
Commission.  No  costs  will  be  allowed  in 
this  court,  except  that  respondent  pay  the 
clerk's  fees. 

Barnes,  J.,  concurring  (filed  June  2, 
1913) : 

The  court  has  construed  the  statute  in 
this  case  as  meaning  that,  where  husband 
and  wife  have  been  separated  for  a  con- 
siderable length  of  time  without  intention 
to  sever  their  marital  relations,  they  were 
living  together.  I  agree  with  this  con- 
struction of  the  statute.  I  do  not  agree  that 
the  question  of  whether  or  not  they  were 
living  together  is  one  of  fact  in  this  case. 
There  is  no  dispute  whatever  in  the  evidence. 
Had  the  Commission  and  the  circuit  court 
decided  under  the  established  facts  that  the 
parties  were  not  living  together,  this  court 
would  necessarily  have  to  reverse  their  judg- 
ment because  of  the  interpretation  placed 


370 


WORKMEN'S  COMPENSATION. 


upon  the  statute.  The  only  ultimate  fact 
that  could  be  involved  in  this  case  was 
whether  an  intention  to  sever  the  marriage 
relation  could  have  been  inferred  from  the 
evidence.  That  question  being  resolved  in 
favor  of  the  claimant,  I  think  the  question 
of  whether  they  were  in  fact  living  together 


within  the  meaning  of  the  statute  was  pure- 
ly a  question  of  law.  This  matter  is  not  of 
any  particular  importance  in  the  present 
case,  but  may  be  in  future  cases  that  are 
liable  to  arise  under  the  Industrial  Com- 
mission Act. 


Annotation — When  are  husband  and  wife  living  together  within  the  mean- 
ing of  the  compensation  act. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

There  appears  to  be  no  case  other  than 
the  NORTHWESTERN  IRON  Co.  v.  INDUSTRI- 
AL COMMISSION  which  passes  upon  the 
question,  When  are  a  husband  and  wife 
living  together  within  the  meaning  of  the 
compensation  acts?  As  it  said  in  this 
decision,  the  terms  used  in  these  acts  are 
usually  to  be  given  their  practical  and 
popular  meaning,  and  undoubtedly  all  the 
courts  would  agree  with  the  Wisconsin 
court  in  holding  that  the  "living  togeth- 
er" contemplated  by  the  statute  was  in- 
tended to  cover  cases  where  there  was  no 
break  in  the  marriage  relation,  although 
there  might  be  a  physical  separation  of 
the  parties  by  time  and  distance. 

Under  a  majority  of  the  statutes  the 
right  of  persons  to  recover  for  the  death 
of  a  workman  depends  upon  the  question 
whether  or  not  the  claimants  are  depend- 
ent upon  the  deceased  workman.  Ordi- 
narily in  the  case  of  a  widow  there  is  a 
presumption  of  dependency,  although 
such  presumption  will  not  be  indulged  by 
all  of  the  courts.  If,  however,  the  parties 
are  not  living  together,  as  a  matter  of 
fact,  whether  there  be  an  actual  legal 
separation,  or  whether  one  of  the  parties 
has  deserted  the  other,  such  presumption 
no  longer  exists,  and  the  question  of  de- 
pendency then  becomes  a  question  of  fact 
to  be  determined  from  all  of  the  circum- 
stances of  the  case.  It  has  been  held  by 
the  Massachusetts  court  in  Gallagher's 
Case  (1914)  219  Mass.  140,  106  N.  E.  558, 
that  the  conclusive  presumption  that  a 
wife  is  totally  dependent  upon  her  hus- 
band does  not  apply  to  a  case  where  she 
is  actually  living  apart  from  him,  al- 
though this  condition  may  exist  without 
fault  on  her  part. 

So  it  is  held  that  the  conclusive  pre- 
sumption of  dependency  does  not  exist 
where  the  couple  were  voluntarily  living 
apart,  and  the  wife  was  supporting  her- 
self out  of  her  own  earnings.  Nelson's 
Case  (1914)  217  Mass.  467, 105  N.  E.  357, 
5  N.  C.  C.  A.  694. 

The  rule  that  the  conclusive  presump- 
L.R.A.1916A. 


tion  of  dependency  cannot  be  indulged 
where  a  wife  is  living  apart  from  her 
husband  at  the  time  of  his  death  was  al- 
so applied  in  Bentley's  Case  (1914)  217 
Mass.  79, 104  N.  E.  432,  4  N.  C.  C.  A.  559. 

A  wife  who  has  supported  herself 
without  the  aid  of  her  husband  or  knowl- 
edge of  his  whereabouts  for  upwards  of 
six  years  is  not  an  actual  dependent  upon 
him  within  the  meaning  of  the  New  Jer- 
sey act.  Batista  v.  West  Jersey  &  S.  R. 
Co.  (1913)  —  N.  J.  L.  — ,  88  Atl.  954. 

Under  the  English  act,  the  question  of 
the  dependency  of  a  wife  not  living  with 
her  husband  is  wholly  a  question  of  fact. 

Thus,  although  a  workman  has  turned 
his  wife  out  of  doors  and  she  has  lived 
in  a  separate  place  from  him  for  eleven 
years,  receiving  no  support  from  him,  she 
may  be  found  to  be  wholly  dependent  up- 
on him.  Medler  v.  Medler  (1908;  C.  C.) 
124  L.  T.  Jo.  (Eng.)  410,  1  B.  W.  C.  C. 
332. 

And  the  mere  fact  that  a  workman 
had,  when  out  of  work,  left  his  wife,  and 
had  remained  away  until  his  death,  some 
time  afterward,  does  not  prevent  her 
from  being  a  dependent  upon  him. 
Coulthard  v.  Consett  Iron  Co.  [1905]  2 
K.  B.  (Eng.)  869,  22  Times  L.  B.  25,  75 
L.  J.  K.  B.  N.  S.  60,  54  Week.  Rep.  139, 
93  L.  T.  N.  S.  756;  Reg.  v.  Clarke  [1906] 
2  I.  R.  (Ir.)  135. 

Although  the  mere  fact  that  a  man  has 
deserted  his  family  does  not  preclude 
them  from  recovering  compensation  for 
his  death,  -nevertheless  a  deserted  wife 
may,  by  her  conduct,  estop  herself  from 
claiming  to  be  a  dependent.  New  Monck- 
ton  Collieries  v.  Keeling  [1911]  A.  C. 
(Eng.)  648,  80  L.  J.  K.  B.  N.  S.  1205, 
105  L.  T.  N.  S.  337,  27  Times  L.  R.  551, 
55  Sol.  Jo.  687,  [1911]  W.  N.  176,  4  B. 
W.  C.  C.  332  (wife  supported  herself  for 
more  than  twenty  years) ;  Polled  v.  Great 
Northern  R.  Co.  (1912)  5  B.  W.  C.  C. 
(Eng.)  620  (wife  deliberately  separated 
from  her  husband) ;  Lee  v.  The  Bessie 
[1912]  1  K.  B.  (Eng.)  83,  [1912]  W.  N. 
222,  105  L.  T.  N.  S.  659,  81  L.  J.  K.  B. 
N.  S.  114,  [1912]  W.  C.  Rep.  57,  12  Asp. 
Mar.  L.  Cas.  89,  5  B.  W.  C.  C.  55,  Ann. 


HUSBAND  AND  WIP'E  LIVING  TOGETHER. 


371 


Cas.  1913E,  477  (deserted  wife  subse- 
quently lived  with  another  man). 

Under  the  English  act  of  1897,  as  ap- 
plied in  Scotland,  a  woman  living  apart 
from  her  husband,  who  only  contributed 
a  small  sum  to  her  support,  the  rest  of 
her  sustenance  being  obtained  from  rela- 
tives and  occasional  employment,  may 
claim  compensation  for  his  death.  Cun- 
ningham v.  M'Gregor  (1904)  3  Sc.  Sess. 
Cas.  5th  series,  775,  38  Scot.  L.  R.  574,  9 
Scot.  L.  T.  36,  followed  in  Sneddon  v. 
Addie  &  Sons'  Colliery  Co.  (1905)  6  Sc. 
Sess.  Cas.  5th  series,  992,  41  Scot.  L.  R. 
826,  12  Scot.  L.  T.  229,  where  it  was  held 
that  a  woman  unable  to  do  anything  for 
her  own  support  is  entitled  to  compensa- 
tion for  the  death  of  her  husband,  al- 
though he  had  deserted  her. 

The  wife  of  a  foreigner  who  came  to 
Scotland,  and  during  eight  months'  resi- 
dence forwarded  her  the  sum  of  £1,  may 


be  found  to  be  a  dependent,  but  not 
wholly  dependent  upon  her  husband, 
where  she  supported  herself  sometimes 
by  earnings  .as  an  outdoor  laborer  at  a 
small  wage.  Baird  v.  Birsztan  (1906)  8 
Sc.  Sess.  Cas.  (Scot.)  5th  series,  438. 

But  if,  as  a  matter  of  fact,  the  wife 
receives  nothing  at  all  from  her  husband, 
who  had  left  her,  she  is  not  a  dependent 
upon  him.  Lindsay  v.  M'Glashan  [1908] 
S.  C.  762,  45  Scot.  L.  R.  559;  Turners  v. 
Whitefield  (1905)  6  Sc.  Sess.  Cas.  5th 
series,  822,  41  Scot.  L.  R.  631, 12  Scot.  L. 
T.  131. 

A  woman  deserted  by  her  husband,  and 
having  no  title  to  sue  for  damages  or 
solatium  for  the  death  of  her  son,  has 
no  title  to  claim  compensation  under  the 
act  as  a  dependent  upon  him.  Campbell 
v.  Barclay  (1904)  6  Sc.  Sess.  Cas.  5th 
series,  371,  41  Scot.  L.  R.  289,  11  Scot. 
L.  T.  682.  W.  M.  GK 


MASSACHUSETTS     SUPREME     JUDI- 
CIAL  COURT. 

BARNEY  GILLEN 

v. 

OCEAN  ACCIDENT  &  GUARANTEE  COR- 
PORATION, Limited,  Appt. 

(215  Mass.  96,  102  N.  E.  346.) 

Master  and  servant  —  employers'  lia- 
bility act  —  different  employers  — 
working  part  time. 

The  compensation  to  be  made  to  an  in- 
jured longshoreman  who  has  worked  for 
the  person  in  whose  employment  he  is  in- 
jured only  a  limited  number  of  hours  per 
week,  and  whose  employer,  at  the  time  of 
the  injury,  employed  no  longshoremen  con- 
tinuously, is  to  be  ascertained,  where  the 
injured  person  puts  in  his  full  time  by 
working  for  different  employers,  upon  the 
basis  of  the  average  weekly  compensation 
earned  by  longshoremen  in  that  locality, 
under  a  workmen's  compensation  act  pro- 
viding that  the  amount  to  be  paid  injured 
employees  shall  be  ascertained,  in  case  of 
persons  continuously  employed,  by  ascer- 
taining their  average  weekly  earnings  for 
the  year  past,  and  where,  by  reason  of 
shortness  of  the  term  of  employment,  it  is 
impracticable  to  compute  the  average  week- 
ly wages  for  the  year,  regard  shall  be  had 
to  the  average  weekly  amount  which,  dur- 
ing the  twelve  months  previously  to  the 
injury,  was  being  earned  by  a  person  in  the 
same  grade  employed  at  the  same  work 
by  the  same  employer,  or,  if  there  is  no 
person  so  employed,  by  a  person  in  the 

Note.  —  As  to  "average  weekly  earnings" 
under    compensation    act    of    workman    em- 
ployed   by    several    employers,    see    annota- 
tion following  this  case,  post,  373. 
L.R.A.1916A. 


same  grade,   in   the  same   class   of   employ- 
ment, and  in  the  same  business. 
For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  m  Dig.  1-52  A7.  S. 

(May  24,  1913.) 

APPEAL  by  defendant  from  a  judgment 
of  the  Superior  Court  for  Suffolk 
County  approving  a  decision  of  the  In- 
dustrial Accident  Board  on  review  in  a  pro- 
ceeding to  fix  the  compensation  to  be  paid 
to  an  injured  longshoreman  under  the 
workmen's  compensation  act.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  James  T.  Connolly  for  appellant. 

Mr.  James  E.  McConnell,  for  appellee: 

The  court  may  look  at  what  are  the  aver- 
age earnings  of  a  casual  dock  laborer  in  the 
same  district. 

Perry  v.  Wright  [1908]  1  K.  B.  441,  98 
L.  T.  N.  S.  327,  77  L.  J.  K.  B.  N.  S.  236,  24 
Times  L.  R.  186,  1  B.  W.  C.  C.  351;  Anslow 
v.  Cannock  Chase  Colliery  Co.  [1909]  1  K. 
B.  352,  78  L.  J.  K.  B.  N.  S.  154,  99  L.  T.  N. 
S.  901,  25  Times  L.  R.  167,  53  Sol.  Jo.  132, 
[1909]  A.  C.  435,  78  L.  J.  K.  B.  N.  S.  679, 
100  L.  T.  N.  S.  786,  25  Times  L.  R.  570,  53 
Sol.  Jo.  519. 

The  object  of  the  act  is  to  compensate  a 
workman  for  his  loss  of  capacity  to  earn, 
which  is  to  be  measured  by  what  he  can 
earn  in  the  employment  in  which  he  is, 
under  the  conditions  prevailing  therein,  be- 
fore and  up  to  the  time  of  the  accident. 

Cain  v.  Ley  land  &  Co.  [1908]  1  K.  B.  441, 
77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N.  S.  327, 
24  Times  L.  R.  186,  1  B.  W.  C.  C.  368. 


372 


WORKMEN'S  COMPENSATION. 


Ch.  J.,  delivered  the  opinion  of 
the  court: 

This  is  an  appeal  under  the  workmen's 
compensation  act  (Stat.  1911,  chap.  751). 
The  employee,  a  longshoreman,  was  injured 
in  the  course  of  his  employment  by  the 
Canada,  Atlantic,  &  Plant  Steamship  Com- 
pany, which  was  insured  under  the  act 
with  the  insurer.  The  facts  are  that  the 
steamship  company  operates  a  line  between 
Boston  and  Halifax,  one  boat  in  winter  and 
two  boats  in  summer,  arriving  at  and  leav- 
ing Boston  each  week.  The  longshoremen  in 
its  employ  work  on  an  average  for  fifteen 
to  twenty  hours  weekly,  and  receive  from  it 
not  more  than  $8  a  week.  The  employee,  like 
other  longshoremen,  worked  for  other  em- 
ployers during  a  day  or  group  of  days,  and 
•earned  by  the  year  or  by  his  services  an 
average  weekly  wage  of  $13,  which  was  the 
average  weekly  wage  earned  by  other  long- 
shoremen in  the  same  class  of  employment 
and  in  the  same  district.  The  insurer  con- 
tends that  the  employee  was  not  a  regu- 
lar employee  of  the  steamship  com- 
pany, and  that  his  average  weekly  wages 
must  be  the  average  amount  per  week  which, 
during  the  twelve  months  previous  to  the 
injury,  was  being  earned  by  a  person  in  the 
same  grade,  employed  at  the  same  work  by 
the  same  employer.  If  this  contention  is 
sound  the  employee  would  be  entitled  to  $4 
per  week.  The  employee  contends,  however, 
that  inasmuch  as  he  worked  continuously  at 
his  occupation  as  longshoreman  for  different 
employers,  according  to  the  custom  of  his 
craft,  he  is  entitled  to  receive  $6.50,  being 
one  half  his  average  weekly  earnings  as 
longshoreman  from  all  sources. 

The  decision  depends  upon  the  meaning  of 
"average  weekly  wages"  and  the  method  of 
their  ascertainment  as  set  out  in  part  5,  §  2, 
of  the  act.  "Average  weekly  wages"  are 
there  defined  to  mean  ''earnings  of  the  in- 
jured employee  during  the  period  of  twelve 
calendar  months  immediately  preceding  the 
•date  of  injury,  divided  by  fifty-two,  but  if 
the  injured  employee  lost  more  than  two 
weeks'  time  during  such  period,  then  the 
•earnings  for  the  remainder  of  such  twelve 
•calender  months  shall  be  divided  by  the 
-number  of  weeks  remaining  after  the  time  so 
lost  has  been  deducted."  It  is  apparent  both 
from  its  phrase  and  its  context  that  this 
sentence  applies  to  a  continuous  employment 
throughout  the  year.  While  the  language  is 
not  amplified,  it  refers  to  substantially  un- 
interrupted work  in  a  particular  employ- 
ment, from  which  the  wages  of  the  employee 
are  derived.  The  basis  is  the  earning  ca- 
pacity of  the  workman  as  shown  by  such 
•employment.  The  next  clause  of  the  section 
is:  "Where,  by  reason  of  the  shortness  of 
the  time  during  which  the  employee  has  been 
L.R.A.1936A. 


in  the  employment  of  his  employer,  or  the 
nature  or  terms  of  the  employment,  it  is 
impracticable  to  compute  the  average  week- 
ly wages,  as  above  defined,  regard  may  be 
had  to  the  average  weekly  amount  which, 
during  the  twelve  months  previous  to  the 
injury,  was  being  earned  by  a  person  in  the 
same  grade  employed  at  the  same  work  by 
the  same  employer."  This  clause  provides 
a  method  for  the  determination  of  average 
weekly  wages,  where  the  employee,  for  the 
reasons  stated,  has  not  been  in  the  service 
for  a  year,  by  reference  to  the  wages  of 
others  whose  employment  is  substantially 
continuous.  It  affords  a  guide  by  which  to 
estimate  the  compensation  to  be  paid  to  the 
employee  engaged,  where  there  are  those  in 
the  service  of  the  same  employer  continu- 
ously employed  in  the  same  grade  at  the 
same  kind  of  work.  It  is  apparent  that  thia 
clause  does  not  cover  the  employee's  case, 
because  there  is  no  substantially  continuoua 
employment  of  longshoremen  by  the  steam- 
ship company  during  the  year.  It  is  obvious 
from  the  broad  scope  of  the  act  and  its 
comprehensive  dealing  with  the  whole  sub- 
ject that  it  was  intended  to  provide  for  the 
employee  as  compensation  within  the  limits 
specified  therein  a  definite  proportion  of  the 
amount  which  he  earned  weekly.  It  cannot 
be  presumed  that  the  legislature  intended 
to  offer  a  scheme  of  accident  insurance 
which  would  be  illusory  or  barren  to  large 
numbers  of  workmen. 

"Weekly  wages,"  as  used  in  the  first 
sentence  quoted  above,  plainly  means  all  the 
wages  which  the  employee  received  in  the 
course  of  a  permanent  employment,  which 
are  all  the  wages  he  receives.  Where  words 
are  used  in  one  part  of  a  statute  in  a  defi- 
nite sense,  it  may  be  presumed,  in  the  ab- 
sence of  a  plain  intent  to  the  contrary,  that 
they  are  used  in  the  same  sense  in  other 
places  in  the  same  act.  Therefore,  we  reacn 
the  conclusion  that  average  ,weekly  wages, 
as  used  in  the  clause  of  the  act  last  quoted, 
was  not  intended  to  apply  to  recurrent 
periods  of  brief  service  at  regular  intervals, 
in  cases  where  the  entire  time  of  the  work- 
men is  devoted  to  like  employment  for  other 
employers  in  the  same  general  kind  of  busi- 
ness. The  final  clause  of  the  paragraph  de- 
fining average  weekly  wages  is  as  follows: 
"Or,  if  there  is  no  person  so  employed,  by 
a  person  in  the  same  grade  employed  in  the 
same  class  of  employment  and  in  the  same 
district."  This  clause  affords  reference  to 
a  general  average  of  like  employment  in  the 
neighborhood  as  a  standard  to  be  considered. 
It  does  not  restrict  consideration  of  the  mat- 
ter to  the  same  employer.  It  applies  to  a 
case  like  the  present,  where  the  custom  of 
the  employment  is  for  continuous  work  of  a 
specified  kind  for  different  employers. 


GILLEN  v.  OCE\N  ACCI.  &  G.  CORP. 


375 


While  the  language  of  the  definition  is 
not  so  clear  as  might  be  desired,  it  seems  to 
us  to  be  intended  to  include  in  abridged 
form  parts  of  (1)  (b)  and  (2)>  (a.)  and  (b) 
of  the  first  schedule  of  the  English  work- 
men's compensation  act.  6  Edw.  VII. 
(1906)  chap.  58.  It  is  true  that  (2)  (b)  of 
the  English  schedule  covers  a  case  like  the 
present  in  express  language.  But  the  Eng- 
lish act  is  more  minute  in  many  of  its  pro- 
visions, and  our  act  resembles  the  present 
English  act  far  more  closely  than  it  does  the 
earlier  one  of  Stat.  60  &  61  Viet.  chap.  37. 
Although  not  stated  in  precise  words,  we 
think  that  the  general  import  of  the  act  is 
to  base  the  remuneration  to  be  paid  upon 
the  normal  return  received  by  workmen  for 
the  grade  of  work  in  which  the  particular 
workman  may  be  classified.  This  is  a  case 
where  it  is  "impracticable"  to  reach  a  result 
which  shall  be  fair  to  the  workman  to  the 
extent  intended  by  the  act  of  giving  him 
compensation  for  average  weekly  earnings  in 
any  other  way  than  by  following  the  course 
pointed  out  in  the  final  clause  of  the  defi- 


nition. See  Perry  v.  Wright  [1908]  1  K.  B. 
441,  77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N.  S. 
327,  24  Times  L.  R.  186,  1  B.  W.  C.  C.  351; 
Anslow  v.  Cannock  Chase  Colliery  Co. 
[1909]  1  K.  B.  352,  78  L.  J.  K.  B.  N.  S.  154, 
99  L.  T.  N.  S.  901,  25  Times  L.  R.  167,  53 
Sol.  Jo.  132,  a.  c.  [1909]  A.  C.  435,  78  L.  J. 
K.  B.  N.  S.  679,  100  L.  T.  N.  S.  786,  25 
Times  L.  R.  570,  53  Sol.  Jo.  519. 

This  is  not  a  case  where  the  usual  employ- 
ment of  the  employee  is  only  two  or  three 
days  in  a  week,  as  pointed  out  in  White  v. 
Wiseman  [1912]  3  K.  B.  352,  359,  81  L.  J. 
K.  B.  N.  S.  1195,  107  L.  T.  N.  S.  277,  28 
Times  L.  R.  542,  56  Sol.  Jo.  703,  5  B.  W. 
C.  C.  654,  Ann.  Cas.  191 3D,  1021,  but  a  case 
where  the  condition  of  the  workman  is  con- 
tinuous labor  in  regular  employment  with 
different  employers.  The  loss  of  his  ca- 
pacity to  earn,  as  demonstrated  by  his 
conduct  in  such  regular  employment,  is  the 
basis  upon  which  his  compensation  should 
be  based. 

Decree  affirmed. 


Annotation — "Average  weekly  earnings"  under  compensation  act  of  work- 
man employed  by  several  employers. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

Under  the  Massachusetts  act  consid- 
eration of  the  average  weekly  wages  of 
an  injured  employee  is  not  restricted  to 
the  wages  earned  from  the  same  em- 
ployer. GILLEN  v.  OCEAN  ACCI.  &  GUAR- 
ANTEE CORP. 

Under  the  Michigan  act  the  term  "av- 
erage annual  earnings"  means  the  aver- 
age annual  earnings  in  the  employment 
in  which  the  workman  was  employed  at 
the  time  of  his  injury,  although  he  was 
engaged  in  such  employment  but  a  por- 
tion of  each  year,  and  was  engaged  in 
other  employments  during  the  remaining 
part  of  the  year.  Andre jwski  v.  Wol- 
verine Coal  Co.  (1914)  182  Mich.  298, 
148  N.  W.  684,  6  N.  C.  C.  A.  807. 

Under  the  English  act  of  1897,  wages 
earned  from  an  employer  other  than 
the  one  from  whom  compensation  was 
sought  could  not  be  considered  in  esti- 
mating the  average  weekly  earnings  of 
a  workman.  Price  v.  Marsden  [1899] 
1  Q.  B.  (Eng.)  493,  68  L.  J.  Q.  B.  N.  S. 
307,  47  Week.  Eep.  274,  80  L.  T.  N.  S. 
15,  15  Times  L.  R.  184;  Williams  v. 
Poulson  (1899)  16  Times  L.  R.  (Eng.) 
42,  63  J.  P.  757,  2  W.  C.  C.  127;  Small 
v.  M'Cormick  (1899)  1  Sc.  Sess.  Cas. 
5th  series,  883,  36  Scot.  L.  R.  700,  7 
Scot.  L.  T.  35;  Hunter  v.  Baird,  7  F. 
L.R.A.1916A. 


(Scot.)  304,  as  cited  in  2  Mews,  Engv 
Case  Law  Dig.  (1898-07)  Supp.  1570;. 
Bartlett  v.  Tutton  [1902]  1  K.  B.  (Eng.) 
72,  71  L.  J.  K.  B.  N.  S.  52,  66  J.  P.  196,. 
50  Week.  Rep.  149,  85  L.  T.  N.  S.  531,, 
18  Times  L.  R.  35. 

But  the  English  statute  was  greatly 
extended  by  the  amendment  of  1906,  and,, 
by  the  express  provisions  of  f  2  of  the 
first  schedule,  consideration  may  be  given 
in  a  proper  case  to  earnings  from  em- 
ployers other  than  the  one  from  whomi 
compensation  is  sought.  It  has  been* 
stated  that  the  dominant  principle  of 
the  amendment  is  that  the  earnings  are- 
to  be  computed  in  the  manner  best  calcu- 
lated to  give  the  rate  per  week  at  which- 
the  workman  was  remunerated.  Perry 
v.  Wright  [1908]  1  K.  B.  (Eng.)  441,. 
77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N.  S. 
327,  24  Times  L.  R.  186,  1  B.  W.  C.  C.- 
351. 

The  provision  of  the  statute  relative 
to  earnings  under  concurrent  contracts 
of  employment  has  no  application  where- 
compensation  is  sought  by  the  dependent 
of  a  workman  who  had  worked  contin- 
uously for  over  three  years  for  the  same 
employer.  Buckley  v.  London  &  I.  Docks 
(1909)  127  L.  T.  Jo.  (Eng.)  521,  2  B. 
W.  C.  C.  327. 

And  a  porter  on  a  wharf  working  at 
different  times  for  different  shipping 
companies  is  not  under  concurrent  con- 


374 


WORKMEN'S  COMPENSATION. 


tracts  of  employment,  where  he  takes 
the  second  job  only  after  the  first  one 
is  finished,  and  a  third  only  after  the 
second  one  has  been  completed.  Cue  v. 
Court  of  London  Authority  [1914]  3  K. 

B.  (Eng.)   892,   [1914]   W.  N.  280,  137 
L.  T.  Jo.  211,  83  L.  J.  K.  B.  N.  S.  1445, 
111  L.  T.  N.  S.  736,  7  B.  W.  C.  C.  447. 

The  concurrent  contract,  however,  need 
not  be  of  an  ejusdem  generis  character. 
Lloyd  v.  Midland  R.  Co.  [1914]  2  K.  B. 
(Eng.)  53,  83  L.  J.  K.  B.  N.  S.  330,  110 
L.  T.  N.  S.  513,  30  Times  L.  R.  247,  58 
Sol.  Jo.  249,  [1914]  W.  N.  32  [1914]  W. 

C.  &  Ins.  Rep.  105,  7  B.  W.  C.  C.  72 
(railroad    employee    earned    money    by 
working  in  theater  at  night) ;  The  Raph- 
ael v.  Brandy  [1911]  A.  C.  (Eng.)  413, 
80  L.  J.  K.  B.  N.  S.  1067,  105  L.  T.  N. 
S.  116,  27  Times  L.  R.  497,  55  Sol.  Jo. 
579,  4  B.  W.  C.  C.  307  (retainer  fee  of 
stoker  in  the  Royal  Naval  Reserve  taken 
into    consideration    in    fixing    average 
weekly  earnings  of  stoker). 

Money  earned  by  a  workman  from 
some  source  other  than  the  employer 
jfrom  whom  compensation  is  sought  is 
not  to  be  considered  where  it  is  not 
earned  under  a  contract  of  employment. 


Simmons  v.  Heath  Laundry  Co.  [1910] 
1  K.  B.  (Eng.)  543,  79  L.  J.  K.  B.  N.  S. 
395,  102  L.  T.  N.  S.  210,  26  Times  L.  R. 
326,  54  Sol.  Jo.  392,  3  B.  W.  C.  C.  200 
(employee  in  laundry  earned  money  giv- 
ing music  lessons,  but  not  under  any 
regular  contract  of  employment). 

But  money  received  as  "tips"  is  to  be 
included  in  the  "average  weekly  earn- 
ings," where  the  giving  and  receiving  of 
such  tips  are  notorious.  Penn  v.  Spiers 
&  Pond  [1908]  1  K.  B.  (Eng.)  766,  77 
L.  J.  K.  B.  N.  S.  542,  98  L.  T.  N.  S.  541, 
24  Times  L.  R.  354,  52  Sol.  Jo.  280,  1 

B.  W.  C.  C.  401,  14  Ann.  Cas.  335;  Knott 
v.  Tingle  Jacobs  &  Co.  (1911)  4  B.  W. 

C.  C.  (Eng.)  55;  Hains  v.  Corbet  (1912) 
5  B.  W.  C.  C.  (Eng.)  372. 

The  average  weekly  earnings  do  not 
include  weekly  payments  by  way  of  com- 
pensation for  a  previous  accident.  Gough 
v.  Crawshay  Bros  [1908]  1  K.  B.  (Eng.) 
441,  77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N. 
S.  327,  24  Times  L.  R.  186,  1  B.  W.  C. 
C.  374. 

Nor  do  "average  weekly  earnings"  in- 
clude an  amount  received  from  the  poor 
fund.  Gilroy  v.  Mackie  [1909]  S.  C. 
466,  46  Scot.  L.  R.  325.  W.  M.  G. 


AVISCONSIN     SUPREME     COURT. 

MELLEN   LUMBER   COMPANY,   Appt., 

v. 

INDUSTRIAL     COMMISSION     OF     WIS- 
CONSIN et  al.,  Respts. 

(154  Wis.  114,  142  N.  W.  187.) 

Master  and  servant  —  workman's  com- 
pensation act  —  total  disability  — 
earning  capacity  in  other  calling. 

1.  One  who,  by  the  loss  of  a  thumb  and 
finger  on  one  hand,  is  disabled  from  follow- 
ing the  particular  calling  in  which  he  was 
engaged,  is  entitled  to  compensation  for 
total  disability  regardless  of  what  he  may 
be  able  to  earn  in  other  occupations,  under 
a  statute  providing  that  the  weekly  loss  of 
wages  on  which  the  compensation  of  an  in- 
jured employee  shall  be  computed  shall 
consist  of  such  percentage  of  the  average 
weekly  earnings  of  the  injured  employee 
as.  shall  fairly  represent  the  proportionate 
extent  of  the  impairment  of  his  earning  ca- 
pacity "in  the  employment  in  which  he 
was  working  at  the  time  of  the  accident." 
For  other  cases,  see  Master  and  Servant  II. 

a,  1,  in  Dig.  1-52  N.  8. 


Note.  —  As  to  consideration  of  possible 
earnings  of  injured  employee  in  other  em- 
ployment, in  fixing  compensation  under 
compensation  acts,  see  annotation  following 
this  case,  post,  377. 
L.R.A.1916A. 


Statute  —  construction  —  inequitable 
results  —  absurdity. 

2.  That    a    statute    literally    interpreted 
may  be  inequitable  does  not  make  it  absurd, 
so  that   such   interpretation   should  not   be 
followed. 

For  other  cases,  see  Statutes,  II.  a,  in  Dig. 
1-52  N.  S. 

Same  —  right  to  question  constitution- 
ality. 

3.  An  employer  who  has  voluntarily  ac- 
cepted the  benefit  of  a  workman's  compensa- 
tion act  cannot  defeat  its  operation  on  the 
theory  that  it  deprives  him  of  due  process 
of  law. 

For  other  cases,  see  Estoppel,  III.  k,  in 
Dig.  1-52  N.  S. 

(May  31,   1913.) 

APPEAL  by  complainant  from  a  judg- 
ment of  the  Circuit  Court  for  Dane 
County  confirming  an  award  of  the  Com- 
mission under  the  employers'  liability  act. 
Affirmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Brown,  Pradt,  &  Genrich,  for 
apellant: 

Plaintiff  was  not  totally  disabled,  and 
the  Commission  acted  without  and  in  ex- 
cess of  its  powers. 

Borgnis  v.  Falk  Co.  147  Wis.  360,  37 
L.R.A.(N.S.)  489,  133  N.  W.  209,  3  N.  C. 
C.  A.  649. 


MELLEN  LUMBER  CO.  v.  INDUSTRIAL  COMMISSION. 


375 


If  a  literal  interpretation  of  any  part  of 
a  statute  would  operate  unjustly  or  ab- 
surdly, it  should  be  rejected. 

Heydenfeldt  v.  Daney  Gold  &  S.  Min.  Co. 
93  U.  S.  634,  23  L.  ed.  995,  13  Mor.  Min. 
Rep.  204;  United  States  v.  Kirby,  7  Wall. 
482,  19  L.  ed.  278;  Huidekoper  v.  Douglass, 
3  Cranch,  1,  2  L.  ed.  347;  Hawaii  v.  Man- 
kichi,  190  U.  S.  197,  47  L.  ed.  1016,  23  Sup. 
Ct.  Rep.  787,  12  Am.  Crim.  Rep.  465; 
Somo  Lumber  Co.  v.  Lincoln  County,  110 
Wis.  294,  85  N.  W.  1023;  Bird  v.  United 
States,  187  U.  S.  118,  47  L.  ed.  100,  23  Sup. 
Ct.  Rep.  42;  Atkins  v.  Fibre  Disintegrating 
Co.  18  Wall.  272,  21  L.  ed.  841;  Church 
of  the  Holy  Trinity  v.  United  States,  143 
U.  S.  462,  36  L.  ed.  229,  12  Sup.  Ct.  Rep. 
511 ;  Water  Power  Cases,  148  Wis.  145,  38 
L.R.A.(N.S.)  526,  134  N.  W.  330. 

If  the  statute  will  admit  of  no  other 
interpretation  than  that  which  has  been  an- 
nounced in  this  case,  it  is  unconstitutional. 

10  Am.  &  Eng.  Enc.  Law,  296;  Griswold 
College  v.  Davenport,  65  Iowa,  633,  22  N. 
W.  904;  Brown  v.  Levee  Comrs.  50  Miss. 
468;  Re  Ah  Lee,  6  Sawy.  410,  5  Fed.  899; 
Cooley,  Const.  Lim.  *167;  Durkee  v.  Janes- 
ville,  28  Wis.  467,  9  Am.  Rep.  500;  Green 
Bay  &  M.  Canal  Co.  v.  Kaukauna  Water 
Power  Co.  (Patten  Paper  Co.  v.  Kaukauna 
Water  Power  Co.)  90  Wis.  399,  28  L.R.A. 
443,  48  Am.  St.  Rep.  937,  61  N.  W.  1121, 
63  N.  W.  1019;  Missouri  P.  R.  Co.  v.  Ne- 
braska, 164  U.  S.  403,  41  L.  ed.  489,  17 
Sup.  Ct.  Rep.  130. 

Mr.  W.  Stanley  Smith,  for  respondent 
Winters : 

The  workmen's  compensation  act  is  con- 
stitutional. 

Borgnis  v.  Falk  Co.  147  Wis.  327,  37 
L.R.A.  (N.S.)  489,  133  N.  W.  209,  3  N. 
C.  C.  A.  649. 

Messrs.  Walter  C.  Owen,  Attorney  Gen- 
eral, and  Byron  H.  Stebbins,  First  As- 
sistant Attorney  General,  for  respondent 
Industrial  Commission: 

The  act  is  not  unconstitutional. 

Borgnis  v.  Falk  Co.  147  Wis.  327,  37 
L.R.A.(N.S.)  489,  133  N.  W.  209r  3  N.  C. 
C.  A.  649;  State  ex  rel.  Kellogg  v.  Currens, 
111  Wis.  431,  56  L.R.A.  252,  87  N.  W.  561; 
Ferguson  v.  Landram,  5  Bush,  230,  96  Am. 
Dec.  350;  Daniels  v.  Tearney,  102  U.  S. 
415,  421,  26  L.  ed.  187,  189;  O'Brien  v. 
Wheelock,  184  U.  S.  450,  490,  46  L.  ed. 
636,  654,  22  Sup.  Ct.  Rep.  354;  Grand 
Rapids  &  I.  R.  Co.  v.  Osborn,  193  U.  S.  17, 
29,  48  L.  ed.  598,  604,  24  Sup.  Ct.  Rep. 
310;  Willis  v.  Wyandotte  County,  30  C.  C. 
A.  445,  58  U.  S.  App.  665,  86  Fed.  876. 

Barnes,  J.,  delivered  the  opinion  of 
the  court: 

This  case  arises  under  the  workmen's 
L.R.A.1916A. 


compensation  act.  One  Winters  was  em- 
ployed as  a  shingle  sawyer  by  the  plaintiff. 
While  at  work  he  lost  the  thumb  and  index 
finger  of  his  left  hand.  He  was  earning  to 
exceed  $750  per  year  when  injured  He 
applied  to  the  Industrial  Commission  to 
fix  the  amount  of  compensation  which  he 
was  entitled  to  receive.  The  matter  was 
referred  to  Hon.  A.  W.  Sanborn  to  take  tes- 
timony and  make  findings  and  report  the 
same  to  the  Commission.  Mr.  Sanborn 
found  that  the  earning  capacity  of  the  ap- 
plicant had  been  reduced  to  $9  per  week 
by  reason  of  the  injury,  and  that  he  was 
entitled  to  recover  65  per  cent  of  the  dif- 
ference between  the  maximum  amount  al- 
lowable for  total  disability  under  the  com- 
pensation act,  to  wit,  $14.42  a  week,  and 
what  he  was  capable  of  earning  thereafter, 
to  wit,  $9  a  week,  or  $3.52  a  week  for  a 
period  of  fifteen  years,  or  an  aggregate  of 
$2,745.60.  The  Commission  made  an  award 
in  accordance  with  these  findings. 

The  plaintiff  commenced  an  action  to  re- 
view these  findings,  alleging,  among  other 
things,  that  the  award  had  been  made  with- 
out a  final  hearing  before  the  Commission. 
This  contention  was  sustained,  and  the  rec- 
ord was  remanded  for  further  hearing  be- 
fore the  Commission.  Thereafter  the  Com- 
mission made  a  second  award.  It  was  found 
as  a  fact  that  Winters  was  totally  in- 
capacitated by  the  accident  from  again  fol- 
lowing the  occupation  of  shingle  sawyer. 
Jt  is  not  expressly  found  that  the  injured 
employee  could  engage  in  other  lines  of  em- 
ployment, but  in  the  decision  filed  with  the 
award  it  is  said:  "We  feel  that  there  are 
many  occupations  open  to  the  applicant 
where  he  can  earn  a  good  wage,  and  we  have 
little  doubt  that  he  will  find  his  place  as  a 
useful,  self-supporting  member  of  society." 
The  Commission,  on  the  final  hearing, 
awarded  the  claimant  65  per  cent  of  the 
maximum  allowance,  $14.42  a  week,  or 
$9.37,  until  the  weekly  payments  aggre- 
gated $3,000,  less  the  sum  of  $46.85,  which 
had  already  been  paid. 

Among  other  things,  the  Commission 
found:  "That,  because  of  the  injuries  re- 
ceived in  said  accident,  the  said  applicant, 
William  H.  Winters,  is  totally  and  perma- 
nently disabled  so  that  he  cannot  return 
to  the  employment  in  which  he  was  work- 
ing at  the  time  of  the  accident,  and  there 
is  a  total  permanent  impairment  of  his 
earning  capacity  in  such  employment." 
This  second  award  was  confirmed  by  the 
court,  and  plaintiff  appeals  from  the  judg- 
ment of  confirmation. 

It  is  perfectly  obvious  that  the  Commis- 
sion did  not  find,  and  djd  not  intend  to  find, 
that  Winters  was  incapacitated  from  enga- 
ging in  all  gainful  occupations.  It  did  find 


376 


WORKMEN'S  COMPENSATION. 


that  he  was  permanently  disabled  from  en- 
gaging in  the  work  of  shingle  sawyer.  The 
Commission  construed  the  compensation 
act  to  mean  that,  where  an  employee  is 
totally  disabled  from  performing  the  par- 
ticular work  which  he  was  performing  when 
the  injury  occurred,  he  is  entitled  to  re- 
cover the  maximum  allowance  for  total 
disability,  no  matter  what  his  earning  ca- 
pacity may  be  in  other  callings.  The  cir- 
cuit court  came  substantially  to  the  same 
conclusion. 

The  appeal  involves  but  a  single  ques- 
tion, and  that  is  a  question  of  law,  of  statu- 
tory construction.  The  appellant  urges 
that  the  construction  adopted  is  unreason- 
able and  was  not  within  the  contempla- 
tion of  the  legislature;  that  it  is  absurd 
to  say  that  it  was  intended  to  give  the  ap- 
plicant here,  who  concededly  is  capable  of 
earning  a  substantial  wage,  the  same  com-, 
pensation  that  he  would  receive  had  he 
lost  both  his  arms  or  both  his  legs,  and 
that  if  such  is  the  meaning  of  the  law,  it  is 
unconstitutional  because  it  deprives  the  em- 
ployer of  his  property  without  due  process 
of  law.  Some  criticism  is  made  by  the  ap- 
pellant on  the  alleged  hybrid  findings  of 
the  Commission,  and  it  is  insisted  that 
there  should  be  either  a  clear-cut  finding  of 
total  disability  or  one  of  partial  disability. 
If  the  Commission  placed  the  correct  inter- 
pretation upon  the  law,  its  findings  were 
properly  made.  It  found  total  disability 
to  do  a  certain  kind  of  work,  but  not  to  do 
all  kinds  of  work,  and  that  the  statute 
made  it  obligatory  upon  the  Commission  to 
award  compensation  as  for  total  disability. 

The  material  provisions  of  the  compen- 
sation act,  §§  2394—1  to  2394—71,  Stat. 
(1911),  are  the  following: 

Section  2394—9: 

"(2)  If  the  accident  causes  disability,  an 
indemnity  which  shall  be  payable  as  wages 
on  the  eighth  day  after  the  injured  em- 
ployee leaves  work  as  the  result  of  the 
injury,  and  weekly  thereafter,  which  weekly 
indemnity  shall  be  as  follows: 

"(a)  If  the  accident  causes  total  disabil- 
ity, 65  per  cent  of  the  average  weekly  earn- 
ings during  the  period  of  such  total  dis- 
ability: Provided  that,  if  the  disability  is 
such  as  not  only  to  render  the  injured  em- 
ployee entirely  incapable  of  work,  but  also 
so  helpless  as  to  require  the  assistance  of 
a  nurse,  the  weekly  indemnity  during  the 
period  of  such  assistance  after  the  first 
ninety  days  shall  be  increased  to  100  per 
cent  of  the  average  weekly  earnings. 

"(b)  If  the  accident  causes  partial  dis- 
ability, 65  per  cent  of  the  weekly  loss  in 
wages  during  the  period  of  such  partial 
disability. 

"(c)  If  the  disability  caused  by  the  ac- 
L.R.A.1916A. 


cident  is  at  times  total  and  at  times  par- 
tial, the  weekly  indemnity  during  the 
periods  of  each  such  total  or  partial  dis- 
ability shall  be  in  accordance  with  said 
subdivisions  (a)  and  (b),  respectively." 

"The  weekly  loss  in  wages  referred  to  in 
§  23!)4 — 9  shall  consist  of  such  percentage 
of  the  average  weekly  earnings  of  the  in- 
jured employee,  computed  according  to  the 
provisions  of  this  section,  as  shall  fairly 
represent  the  proportionate  extent  of  the 
impairment  of  his  earning  capacity  in  the 
employment  in  which  he  was  working  at 
the  time  of  the  accident,  the  same  to  be 
fixed  as  of  the  time  of  the  accident,  but  to- 
be  determined  in  view  of  the  nature  and 
extent  of  the  injury." 

If  subdivision  "b"  of  §  2394 — 9,  above 
quoted,  stood  alone,  there  could  be  little 
doubt  about  what  it  meant.  But  by  sub- 
division 2  of  §  2394 — 10,  the  legislature  ex- 
plains how  the  loss  of  wages  for  the  partial 
disability  provided  for  in  subdivision  "b"" 
is  to  be  ascertained  and  computed.  It  is- 
"such  percentage  of  the  average  weekly 
earnings  ...  as  shall  fairly  represent 
the  proportionate  extent  of  the  impairment 
of  his  earning  capacity  in  the  employment 
in  which  he  was  working  at  the  time  of  the 
accident.  .  .  ."  This  is  just  what  the 
Commission  allowed;  it  having  found  that 
he  was  totally  incapacitated  from  perform- 
ing his  former  work.  This  is  a  new  statute, 
containing  a  large  number  of  provisions 
which  deal  with  a  new  and  a  complex  sub- 
ject. It  may  well  be  that,  if  the  legislature 
had  in  mind  the  concrete  case  with  which 
we  are  dealing,  it  would  have  provided  for 
such  a  contingency.  It  is  not  very  probable 
that  it  was  intended  to  give  an  employee 
who  lost  a  thumb  and  finger  of  the  left 
hand  the  same  compensation  that  he  would 
be  entitled  to  receive  had  he  been  so  maimed 
that  he  was  totally  incapacitated  from 
doing  any  kind  of  work.  If  this  is  so,  then 
it  is  apparent  that  the  legislature  over- 
looked the  contingency  with  which  we  are 
dealing,  or  it  in  fact  has  provided  that  the 
future  earning  capacity  of  the  employee 
must  be  taken  into  account.  If  the  former 
is  the  correct  diagnosis,  then  the  remedy 
rests  with  the  legislature.  It  is  its  func- 
tion to  amend  the  act  where  amendment  i& 
found  necessary.  The  fact  that  injustice 
may  result  in  the  instant  case  is  nothing 
that  concerns  the  courts  unless  some  con- 
stitutional right  of  the  appellant  is  being 
invaded.  The  plain  and  obvious  meaning  of 
the  language  used  in  a  statute  is  generally 
the  safest  guide  to  follow  in  construing  it. 
Seeking  hidden  meanings  at  variance  with 
the  language  used  is  a  perilous  undertaking 
which  is  quite  as  apt  to  lead  to  an  amend- 
ment of  a  law  by  judicial  construction  as- 


MELLEN  LUMBER  CO.  v.  INDUSTRIAL  COMMISSION. 


377 


it  is  to  arrive  at  the  actual  thought  in  the 
legislative  mind.  Where  a  statute  plainly 
says,  as  this  one  does,  that  the  loss  in  case 
of  partial  disability  shall  consist  of  such 
percentage  of  the  weekly  earnings  of  the 
employee  as  shall  fairly  represent  the  pro- 
portionate extent  of  the  impairment  of  his 
earning  capacity  in  the  employment  in 
which  he  was  working  at  the  time  of  the 
accident,  we  fail  to  see  how  the  court  would 
be  justified  in  adding  thereto  the  following 
limitation :  "Less  such  sums  as  the  em- 
ployee might  be  able  to  earn  in  some  other 
calling."  This  in  effect  is  what  the  court 
would  have  to  do  if  it  adopted  the  con- 
struction for  which  the  appellant  contends. 
There  is  nothing  doubtful,  obscure,  or  am- 
biguous about  the  language  used. 

It  is  argued  that  a  literal  interpretation 
of  a  statute  should  not  be  followed  where 
such  interpretation  would  lead  to  an  absurd 
consequence.  The  statute  in  question  may 
be  inequitable,  but  this  does  not  make  it 
absurd.  It  was  at  one  time  urged  that  the 
courts  might  mitigate  the  rigor  of  harsh 
statutes  by  adopting  a  rule  of  equitable 
construction  by  which  exceptions  might  be 
read  into  such  statutes.  It  never  obtained 
in  this  state,  nor  to  any  considerable  extent 
in  this  country.  It  was  disposed  of  by 
Chief  Justice  Dixon  in  Encking  v.  Simmons, 
28  Wis.  272,  277,  in  the  following  language: 
•'The  proposition,  however  it  may  once  have 
been  held  or  considered,  that  the  courts, 
upon  what  is  termed  an  equitable  construc- 
tion or  otherwise,  may,  against  the  plain 
language  of  a  statute,  and  in  opposition  to 
the  intent  clearly  expressed  by  the  words, 
mitigate  the  'violence  of  the  letter'  by  in- 
troducing exceptions  where  the  statute  it- 
self contains  none,  so  as  to  relieve  in  cases 
of  hardship  or  particular  inconvenience, 
has  been  too  long  and  too  frequently  re- 
jected to  be  now  the  subject  of  serious 
argument  or  doubt.  Such  doctrine,  if  it 
ever  existed,  was  long  since  exploded,  and 
the  rule  now  universally  recognized  and 


acted  upon  is  that,  whatever  else  may  be 
done  with  the  words  of  a  statute,  they  may 
never,  in  the  language  of  Lord  Bacon,  'be 
taken  to  a  repugnant  intent.' "  See  fur- 
ther, Harrington  v.  Smith,  28  Wis.  43. 

The  law  as  it  reads  has  the  merit  of  be- 
ing explicit  as  to  the  amount  of  compen- 
sation which  the  employee  shall  receive, 
although  it  bears  rather  heavily  on  the  em- 
ployer in  a  case  like  the  one  under  con- 
sideration. 

Where  the  language  used  in  a  statute  is 
plain,  the  court  cannot  read  words  into  it 
that  are  not  found  therein  either  expressly 
or  by  fair  implication,  even  to  save  its  con- 
stitutionality, because  this  would  be  legis- 
lation, and  not  construction.  Rogers-Ruger 
Co.  v.  Murray,  115  Wis.  267,  59  L.R.A.  737, 
95  Am.  St.  R*ep.  901,  91  N.  WT.  657. 

Courts  in  construing  statutes  look  to 
consequences,  but  only  where  there  is  room 
for  construction  by  reason  of  ambiguous 
language  being  used,  and  where  a  literal 
construction  would  lead  to  some  absurd 
result.  Berger  v.  Berger,  104  Wis.  282,  76 
Am.  St.  Rep.  877,  80  N.  W.  585;  Sauntry 
v.  Laird,  Norton  Co.  100  Wis.  146,  75  N. 
W.  985;  Gilbert  v.  Dutruit,  91  Wis.  661, 
65  N.  W.  511;  Battis  v.  Hamlin,  22  Wis. 
669. 

The  argument  that  the  provision  under 
discussion  is  violative  of  the  "due  process 
of  law"  clause  of  the  Federal  Constitution 
cannot  prevail.  It  was  optional  with  the 
appellant  to  come  in  under  the  compensa- 
tion act  or  to  stay  out.  It  elected  to  take 
the  former  course.  It  accepted  the  provi- 
sions of  the  act  as  they  were,  the  burdens 
as  well  as  the  benefits,  and  so  long  as  it 
remains  under  the  law  it  must  take  the 
statute  as  it  finds  it.  Daniels  v.  Tearney, 
102  U.  S.  415,  and  cases  cited  page  421, 
26  L.  ed.  187,  189:  Grand  Rapids  &  I.  R. 
Co.  v.  Osborn,  193  U.  S.  17,  29,  48  L.  ed. 
598,  604,  24  Sup.  Ct.  Rep.  310. 

Judgment  affirmed. 


Annotation — Consideration  of  possible  earnings  of  injured  employee  in 
other  employment,  in  fixing  compensation  under  compensation  acts. 


As  to  application  and  effect  of  work- 
men's compensation  acts,  generally,  see 
annotation,  ante,  23. 

As  is  stated  in  MELLEN  LUMBER  Co.  v. 
INDUSTRIAL  COMMISSION,  it  is  quite  prob- 
able that  the  legislature  did  not  have  in 
mind  the  concrete  case  presented  by  the 
facts  in  that  case,  and  did  not  intend  to 
give  an  employee  who  had  lost  only  a 
thumb  and  finger  of  the  left  hand  the 
same  compensation  that  he  would  have 
been  entitled  to  receive  had  he  been  so 
L.R.A.1916A. 


maimed  that  he  was  totally  incapacitat- 
ed from  doing  any  kind  of  work. 

In  a  number  of  statutes,  provision  is 
expressly  made  for  the  awarding  01 
compensation  based  upon  the  difference 
between  what  the  workman  had  been 
earning  at  the  time  of  the  injury,  and 
what  he  was  able  to  earn  in  some  suit- 
able employment  after  his  injury. 

There  is  such  a  provision  in  the  Kan- 
sas statute,  and  in  Roberts  v.  Charles 
Wolff  Packing  Co.  (1915)  95  Kan.  723, 


378 


WORKMEN'S  COMPENSATION. 


149  Pac.  413,  it  was  held  that  the  com- 
pensation to  be  awarded  a  workman 
who,  before  his  injury,  was  earning  $12 
a  week,  and  after  the  injury  was  able  to 
earn  but  $3  a  week,  was  50  per  cent  of 
the  difference,  namely,  $4.50  per  week. 

The  English  statute  expressly  provides 
that  in  case  of  partial  incapacity,  "the 
weekly  payment  cannot  exceed  the  dif- 
ference between  the  amount  of  the  aver- 
age weekly  earnings  of  the  workman  be- 
fore the  accident,  and  the  average  weekly 
amount  which  he  is  earning  or  able  to 
earn  in  some  suitable  employment  or  bus- 
iness after  the  accident." 

In  a  large  number  of  cases  arising 
under  the  English  statutes,  consideration 
has  been  given  to  the  earnings  of  the 
employee  in  another  "suitable"  employ- 
ment; but  these  cases  turn  rather  upon 
the  question  of  the  duty  of  the  workman 
to  seek  other  employment,  than  on  the 
question  whether  the  wages  earned  by 
him  are  to  be  considered.  Consequently 
they  will  not  be  discussed  at  this  place; 
they  will  be  found  set  out  and  discussed 
at  length  in  the  note  on  the  application 
and  effect  of  workmen's  compensation 
acts  generally,  at  page  143. 

The  attitude  of  the  English  court  is 
well  indicated  by  the  decision  in  Cam- 


mell,  L.  &  Co.  v.  Fladd  (1908)  2  B.  W. 
C.  C.  (Eng.)  368,  where  it  was  held  that 
an  unskilled  laborer  will  not  be  presumed 
to  be  incapable  of  doing  any  work  sim- 
ply because  he  is  not  able  to  do  the 
old  work  at  which  he  was  employed  at 
the  time  of  his  injury. 

The  English  court  of  appeal  has  held 
that  the  expression  "average  amount 
which  he  may  be  able  to  earn  after  the 
accident"  is  not  limited  to  earnings  un- 
der an  employer,  but  includes  earnings 
in  a  private  business.  Norman  v.  Wald- 
er  [1904]  2  K.  B.  (Eng.)  27,  73  L.  J. 
K.  B.  N.  S.  461,  68  J.  P.  401,  52  Week. 
Rep.  402,  90  L.  T.  N.  S.  531,  20  Times  L. 
R.  427,  6  W.  C.  C.  124. 

But  the  Scotch  court  of  session  has 
held  that  profits  made  in  business  un- 
dertaken by  the  workman  after  his  injury 
are  not  to  be  taken  as  the  measure  of 
the  workman's  earning  capacity.  Pat- 
erson  v.  Moore  [1910]  S.  C.  29,  47  Scot. 
L.  R.  30,  3  B.  W.  C.  C.  541.  The  Lord 
President  said  that  the  man's  wage-earn- 
ing capacity  is  a  perfectly  different 
thing  from  the  question  of  what  profit 
he  makes  in  a  business,  and  added :  "You 
cannot  get  at  the  man's  wage-earning 
capacity  by  finding  out  what  he  is  mak- 
ing in  business."  W.  M.  G. 


MASSACHUSETTS     SUPREME     JUDI- 
CIAL,  COURT. 

WILLIAM  T.  SULLIVAN,  Employee. 

STRATHMORE    PAPER    COMPANY,    Em- 
ployer. 

AMERICAN    MUTUAL    LIABILITY    IN- 
SURANCE COMPANY,  Insurer,  Appt. 

(218  Mass.  141,  105  N.  E.  463.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  incapacity  for  labor. 

The  time  during  which  an  employee  who 
loses  an  arm  in  his  employment  is  unable 
to  obtain  work  because  of  the  injury  is 
within  the  operation  of  a  statute  provid- 
ing weekly  compensation  while  the  inca- 
pacity for  work  resulting  from  the  injury 
is  total,  although  he  is  able  to  perform  la- 
bor in  much  less  time  after  the  accident  if 
he  could  procure  it. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(May  25,  1914.) 


Note.—  As  to  inability  to  get  work  be- 
cause of  injury,  as  "incapacity  for  work," 
within  the  meaning  of  the  workmen's  com- 
pensation act,  see  annotation  following  this 
case,  post,  380. 
L.R.A.1916A. 


APPEAL  by  insurer  from  a  decree  of  the 
Superior  Court  for  Suffolk  County  af- 
firming a  decision  of  the  Industrial  Accident 
Board  awarding  the  employee  compensation 
for  a  total  incapacity  for  work  during  the 
time  he  was  unable  to  procure  it.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Edward  C.  Stone,  with  Messrs. 
Sawyer,  Hardy,  &  Stone,  for  appellant: 

The  physical  incapacity  for  work  was  not 
total. 

Ball  v.  William  Hunt  &  Sons,  5  B.  W.  C. 
C.  459  [1912]  A.  C.  496,  81  L.  J.  K.  B.  N.  S. 
782,  106  L.  T.  N.  S.  911,  28  Times  L.  R.  428, 
56  Sol.  Jo.  550 ;  McDonald  v.  Wilson's  &  C. 
Coal  Co.  5  B.  W.  C.  C.  478,  [1912]  A.  C. 
513,  81  L.  J.  P.  C.  N.  S.  188,  106  L.  T.  N.  S. 
905,  28  Times  L.  R.  431,  56  Sol.  Jo.  550, 
[1912]  S.  C.  (H.  L.)  74,  49  Scot.  L.  R.  708. 

Mr.  James  H.  Mulcare,  for  appellee: 

The  act  is  a  scheme  to  give  compensation 
for  inability  to  earn  wages. 

Gould's  Case,  215  Mass.  480,  102  N.  E. 
693,  Ann.  Cas.  1914D,  372,  4  N.  C.  C.  A.  60. 

The  words  "incapacity  for  work"  in  §  9  of 
the  statute,  which  contains  the  provisions 
for  payment  of  compensation  for  injuries, 
are  to  be  construed  in  their  fairest  sense 
and  to  be  given  their  broadest  scope  and 
effect. 


RE  SULLIVAN. 


379 


Opinion  of  Justices,  22  Pick.  571;  Re 
Kilby  Bank,  23  Pick.  93. 

The  words  "incapacity  for  work"  have 
been  held  to  mean  inability  to  obtain  work. 

Ball  v.  William  Hunt  &  Sons  [1912]  A.  C. 
496,  81  L.  J.  K.  B.  N.  S.  782,  106  L.  T.  N. 
S.  911,  28  Times  L.  R.  428,  56  Sol.  Jo.  550, 
5  B.  W.  C.  C.  459;  Com.  v.  Kimball,  24 
Pick.  366,  36  Cyc.  1108. 

Sheldon,  J.,  delivered  the  opinion  of  the 
court : 

This  employee  sustained  an  injury  which 
necessitated  the  amputation  of  his  right 
arm,  and  for  which  it  is  admitted  that  he  was 
entitled  to  compensation.  But  the  insurer 
contends  that  on  May  31st  following  the  ac- 
cident he  was  physically  able  to  go  to  work, 
and  that  for  this  reason  his  right  to  be  com- 
pensated for  an  incapacity  for  work  ceased 
on  that  day,  regardless  of  the  question 
whether  he  was  or  was  not  able  to  procure 
work.  The  facts  found  by  the  committee  of 
-arbitration,  and,  on  review,  by  the  In- 
dustrial Accident  Board,  are  that  from  May 
31st  to  October  25th  he  did  not  work,  that 
he  diligently  endeavored  to  secure  employ- 
ment and  was  unable  to  obtain  work  because 
of  the  loss  of  his  arm,  but  that  on  May  31st 
he  was  capable  of  doing  the  work  which  he 
finally  procured,  or  any  work  which  a  one- 
armed  man  could  ordinarily  perform.  Upon 
these  facts,  and  as  an  inference  therefrom, 
it  further  was  found  that  he  was  in  fact 
unable  to  obtain  any  work  at  which  he  could 
earn  wages  during  the  period  from  May  31st 
to  October  25th,  and  he  was  awarded  com- 
pensation for  a  total  incapacity  for  work 
during  that  time.  • 

Our  statute  provides  for  a  weekly  com- 
pensation while  "the  incapacity  for  work 
resulting  from  the  injury  is  total."  Stat. 
1911,  chap.  751,  pt.  2,  §  9.  The  expression 
"incapacity  for  work"  was  taken  from  the 
English  workmen's  compensation  act  of 
1906,  in  which  it  was  provided  that  the 
amount  of  compensation  to  be  paid  "where 
total  or  partial  incapacity  for  work"  result- 
ed from  the  injury  should  be  certain  weekly 
payments.  Accordingly  decisions  of  the 
English  courts  fixing  the  meaning  there  to 
be  given  to  these  words  are  of  weight. 
McNicol's  Case,  215  Mass.  499,  501,  ante, 
306,  102  N.  E.  697,  4  N.  C.  C.  A.  522. 

The  same  words  were  used  in  an  earlier 
English  statute;  and  it  was  held  by  the 
court  of  appeal  in  Clark  v.  Gaslight  &  Coke 
Co.  21  Times  L.  R.  184,  that  the  object  of 
the  act  was  to  give  compensation  for  an  in- 
ability to  earn  wages,  and  that  if  an  in- 
jured employee  after  repeated  efforts  could 
not  get  an  opportunity  to  earn  wages,  a 
finding  that  his  earning  power  was  gone  and 
therefore  that  he  was  under  an  "incapacity 
L.R.A.1916A. 


for  work"  was  warranted,  although  he  had 
a  physical  capacity  to  work  and  earn  money. 
The  same  principle  has  been  affirmed  in 
other  English  decisions,  that  an  inability 
to  obtain  work  resulting  directly  from  a 
personal  injury  is  an  incapacity  for  work 
within  the  meaning  of  this  act,  although  a 
like  inability  resulting  from  some  other 
cause,  such  as  an  altered  condition  of  the 
labor  market,  would  not  be  so.  The  in- 
ability to  get  work  is  evidence  tending  to 
show  an  incapacity  for  work,  although  it 
will  not  always  be  conclusive.  Radchffe  v. 
Pacific  Steam  Nav.  Co.  [1910]  1  K.  B.  685, 
79  L.  J.  K.  B.  N.  S.  429,  102  L.  T.  N.  S.  206, 
26  Times  L.  R.  319,  54  Sol.  Jo.  404,  3  B.  W. 
C.  C.  185 ;  Cardiff  Corp.  v.  Hall,  4  B.  W.  C. 
C.  159  [1911]  1  K.  B.  1009,  80  L.  J.  K.  B. 
N.  S.  644,  27  Times  L.  R.  339,  104  L.  T.  N.  S. 
467;  Brown  v.  J.  I.  Thornycroft  &  Co.  5  B. 
W.  C.  C.  386. 

This  doctrine  of  the  English  courts  was 
settled  finally  in  two  decisions  of  the  House 
of  Lords.  Ball  v.  William  Hunt  &  Sons,  5 
B.  W.  C.  C.  459,  [1912]  A.  C.  496,  81  L. 
J.  K.  B.  N.  S.  782,  106  L.  T.  N.  S.  911,  28 
Times  L.  R.  428,  56  Sol.  Jo.  550,  overruling 
s.  c.  in  the  court  of  appeal  [1911]  1  K.  B. 
1048,  80  L.  J.  K.  B.  N.  S.  655,  104  L.  T. 
N.  S.  327,  27  Times  L.  R.  323,  55  Sol.  Jo. 
383,  4  B.  W.  C.  C.  225,  and  McDonald  v. 
Wilson's  &  C.  Coal  Co.  5  B.  W.  C.  C.  478. 

In  our  opinion  these  decisions  are  correct 
in  principle.  The  object  of  our  statute  was 
to  .give  compensation  for  a  total  or  partial 
loss  of  the  capacity  to  earn  wages.  Gillen's 
Case,  215  Mass.  96,  99,  ante,  371,  102  N.  E 
346.  If,  as  in  this  case,  the  injured  em- 
ployeee  by  reason  of  his  injury  is  unable  in 
spite  of  diligent  efforts  to  obtain  employ- 
ment, it  would  be  an  abuse  of  language  to 
say  that  he  was  still  able  to  earn  money, 
that  he  still  had  a  capacity  for  work,  even 
though  his  physical  powers  might  be  such 
as  to  enable  him  to  do  some  kinds  of  work 
if  practically  the  labor  market  were  not  thus 
closed  to  him.  He  has  become  unable  to 
earn  anything;  he  has  lost  his  capacity  to 
work  for  wages  and  to  support  himself,  not 
by  reason  of  any  change  in  market  condi- 
tions, but  because  of  a  defect  which  is 
personal  to  himself  and  which  is  the  direct 
result  of  the  injury  that  he  has  sustained. 
He  is  deprived  of  the  benefit  which  the  stat- 
ute promises  to  him  if  he  is  told  that  be- 
cause he  could  do  some  work  if  he  could  get 
it,  he  is  not  under  an  incapacity  for  work, 
although  by  reason  of  his  injury  he  can  ob- 
tain no  opportunity  to  work.  But  we  said 
in  Donovan's  Case,  217  Mass.  76,  104  N. 
E.  431,  Ann.  Cas.  1915C,  778,  4  N.  C.  C.  A. 
549,  that  the  statute  was  to  be  construed 
broadly  for  the  purpose  of  carrying  out  its 
manifest  purpose. 


380 


WORKMEN'S  COMPENSATION. 


The  Industrial  Accident  Board  had  a 
right  to  find  that  the  employee  was  totally 
incapacitated  for  work  until  October  25th. 


and  to  award  him  compensation  upon  that 
basis.  The  decree  of  the  Superior  Court 
must  be  affirmed. 


Annotation — Inability  to  get  work  because  of  injury,  as  "incapacity  for 
work,"  within  the  meaning  of  the  workmen's  compensation  act. 


As  to  application  and  effect  of  work- 
men's compensation  acts,  generally,  see 
annotation,  ante,  23. 

That  "incapacity  for  work"  means  in- 
ability to  get  work  because  of  the  injury, 
as  well  as  inability  to  perform  the  work 
because  of  the  injury,  seems  to  be  fairly 
established. 

The  decision  in  RE  SULLIVAN  is  sup- 
ported by  several  other  decisions  of  the 
Massachusetts  court. 

Thus,  although  a  workman  has  a  lim- 
ited physical  capacity  to  work  and  earn 
money,  nevertheless  a  finding  that  he  is 
totally  "incapacitated  for  work"  is  jus- 
tified where  it  is  based  upon  the  further 
finding  that  the  workman  "has  endeav- 
ored to  obtain,  and  has  been  unable  to 
find,  any  work  which  the  incapacity  due 
to  the  injury  will  not  prevent  him  from 
performing."  Duprey's  Case  (1914)  219 
Mass.  189,  106  N.  E.  686. 

And  a  finding  of  inability  to  secure 
employment  because  of  the  injury  is 
equivalent  to  the  finding  of  total  inca- 
pacity for  work.  Stickley's  Case  (1914) 
219  Mass.  513,  107  N.  E.  350. 

A  finding  by  the  Industrial  Accident 
Board  that  during  the  time  in  question 
an  employee  was  physically  unable  to 
earn  anything  renders  immaterial  a  find- 
ing that  the  workman  did  not  make  any 
effort  to  obtain  employment.  Septimo's 
Case  (1914)  219  Mass.  430,  107  N.  E.  63, 
7  N.  C.  C.  A.  906. 

In  Gorrell  v.  Battelle  (1914)  93  Kan. 
370,  144  Pac.  244,  it  was  held  that  in- 
capacity for  work  within  the  meaning 
of  the  Kansas  act  means  inability  to  per- 
form work  and  also  inability  to  secure 
work  to  do. 

A  number  of  cases  under  the  English 
act  have  held  that  the  employer  cannot 
guarantee  work  for  the  workman  against 
the  fluctuations  of  the  labor  market. 
Gray  v.  Reed  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  127,  108  L.  T.  N.  S.  53,  6  B.  W. 
C.  C.  43;  Cardiff  Corp.  v.  Hall  [1911] 
1  K.  B.  (Eng.)  1009,  80  L.  J.  K.  B.  N.  S. 
644,  104  L.  T.  N.  S.  467,  27  Times  L.  R. 
339,  4  B.  W.  C.  C.  159;  Clark  v.  Gaslight 
&  Coke  Co.  (1905)  21  Times  L.  R.  (Eng.) 
184,  7  W.  C.  C.  119.  It  is  not  the  in- 
ability to  get  Avork  because  of  the  state 
of  the  labor  market,  but  because  of  the 
condition  of  the  workman  due  to  the  in- 
L.R.A.1916A. 


jury.  Dobby  v.  Pease  (1909)  2  B.  W. 
C.  C.  (Eng.)  370. 

There  is  some  apparent  conflict  in  the 
decisions  of  the  court  of  appeal  upon 
this  important  question. 

In  Cardiff  Corp.  y.  Hall  [1911]  1  K.  B. 
(Eng.)  1009,  80  L.  J.  K.  B.  N.  S.  644, 104 
L.  T.  N.  S.  467,  27  Times  L.  R.  339,  4 

B.  W.  C.  C.  159,  and  in  Guest,  Keen  & 
Nettlefolds  v.  Winsper  (1911)  4  B.  W.  C. 

C.  (Eng.)  289,  the  court  of  appeal  appar- 
ently took  the  position  that  when  the  em- 
ployer has  proved  that  the  workman  is 
able  to  do  work  of  some  kind,  he  is  en- 
titled to  have  the  compensation  reduced, 
and  there  is  no  obligation  resting  upon 
the  employer  to  show  that  he  can  get 
such  work  to  do.    In  Carlin  v.  Alexander 
Stephen  &   Sons    [1911]    S.   C.   901,  48 
Scot.  L.  R.  862,  5  B.  W.  C.  C.  486,  where 
it  was  shown  that  the  workman  was  able 
to  do  light  work,  and  that  the  employers 
had  offered  him  such  work,  Lord  Salve- 
sen  said  that  he  was  of  the  opinion  that 
the   compensation   might  have   been   re- 
duced on  the  first  finding  alone. 

But  it  had  previously  been  held  by  the 
court  of  appeal  that  where  the  county 
court  judge  has  found  that  the  workman 
was  capable  of  doing  "some  light  work 
if  he  could  obtain  it,"  there  was  a  bur- 
den upon  the  employer  to  show  that  there 
was  work  of  that  character  obtainable. 
Proctor  v.  Robinson  [1911]  1  K.  B. 
(Eng.)  1004,  80  L.  J.  K.  B.  N.  S.  641,  3 
B.  W.  C.  C.  41. 

And  in  an  earlier  case  full  compensa- 
tion was  restored  where  the  workman, 
who  had  injured  his  hand,  had  partially 
recovered  and  had  been  earning  wages 
somewhat  less  than  he  had  formerly 
earned,  but  had  been  discharged  and 
was  unable  to  secure  other  light  work, 
although,  as  was  expressly  found  by  the 
county  court  judge,  he  was  fully  capable 
of  doing  light  work  which  did  not  re- 
quire the  full  use  of  his  hand.  Clark  v. 
Gaslight  &  Coke  Co.  (1905)  21  Times  L. 
R.  (Eng.)  184,  7  W.  C.  C.  119. 

Although  some  of  the  judges  of  the 
court  of  appeal  found  themselves  able 
to  distinguish  between  the  cases  cited 
above,  the  conflict  between  them  is  noted 
and  emphasized  by  Lord  Salvesen  in  his 
decision  in  Carlin  v.  Alexander  Stephen 


INCAPACITY  FOR  WORK. 


381 


&  Sons  [1911]  S.  C.  901,  48  Scot.  L.  R. 
862,  5  B.  W.  C.  C.  486. 

The  House  of  Lords,  however,  has  ap- 
parently settled  the  question,  because 
they  have,  in  unequivocal  terms,  laid 
down  the  proposition  that  "incapacity 
for  work"  may  mean  physical  inability 
to  do  work  so  as  to  earn  wages,  or  it  may 
mean  inability  to  earn  wages  by  reason 
of  inability  to  get  employment,  due  to 
the  belief  of  employers  in  the  unfitness 
of  the  workman  to  perform  work  owing 
to  the  injuries  they  perceive  he  has  sus- 
tained. Ball  v.  Hunt  [1912]  A.  C. 
(Eng.)  496,  81  L.  J.  K.  B.  N.  S.  782,  106 
L.  T.  N.  S.  911,  28  Times  L.  R.  428,  56 
Sol.  Jo.  550,  5  B.  W.  C.  C.  459;  Macdon- 
ald  v.  Wilsons  &  C.  Coal  Co.  [1912]  A. 
C.  (Eng.)  513,  [1912]  S.  C.  (H.  L.)  74, 
81  L.  J.  P.  C.  N.  S.  188,  106  L.  T.  N.  S. 
905,  28  Times  L.  R,  431,  56  Sol.  Jo.  550, 
[1912]  W.  N.  145,  [1912]  W.  C.  Rep.  302, 
5  B.  W.  C.  C.  478,  49  Scot.  L.  R.  708. 

The  House  of  Lords  disapproved  and 
overruled  the  decision  in  Boag  v.  Loch- 
wood  Collieries  [1910]  S.  C.  51,  47  Scot. 


L.  R.  47,  3  B.  W.  C.  C.  549,  in  which  it 
was  held  that  in  a  case  in  which  there 
had  been  an  award  of  compensation 
based  upon  the  theory  that  the  workman 
was  able  to  do  light  work,  it  was  not  a 
ground  for  review  that  the  employers 
were  unable  to  give  him  suitable  light 
work,  and  that  he  was  unable  to  obtain 
light  employment  elsewhere. 

If  the  workman  offers  to  prove  that  he 
tried,  and  was  in  fact  not  able,  to  pro- 
cure light  work,  the  arbitrator  must  con- 
sider the  evidence  and  act  upon  it,  al- 
though he  may  consider  it  along  with 
his  own  local  knowledge  of  the  condi- 
tions of  the  labor  market.  Dyer  v.  Wil- 
sons &  C.  Coal  Co.  (1914)  52  Scot.  L.  R. 
114,  8  B.  W.  C.  C.  367,  [1915]  S.  C.  199. 

And  it  has  been  held  that  if  the  work- 
man is  not  able  to  do  the  light  work 
offered  him,  any  award  based  upon  his 
ability  to  do  such  light  work  may  be  re- 
viewed. Rex  v.  Templer  (1911;  Div. 
Ct.)  132  L.  T.  Jo.  (Eng.)  203. 

W.  M.  G. 


MICHIGAN  SUPREME  COURT. 

HELEN  JENDRUS 

v. 

DETROIT  STEEL  PRODUCTS  COMPANY 
et  al.,  Plffs.  in  Certiorari. 

(178  Mich.  265,  144  N.  W.  563.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  refusal  of  employee 
to  consent  to  immediate  operation. 

Refusal  of  an  injured  workman,  a  for- 
eigner, unable  to  speak  or  understand  the 
English  language,  and  suffering  great  pain, 
to  submit  to  a  serious  operation  until  fifteen 
or  sixteen  hours  after  it  was  first  found 
necessary,  is  not,  as  matter  of  law,  so  un- 
reasonable and  persistent  as  to  amount  to 
a  refusal  of  medical  attention,  and  defeat 
his  widow's  claim  for  compensation  under  a 
workmen's  compensation  act  providing  com- 
pensation for  injuries  arising  out  of  and 
in  the  course  of  the  employment;  nor  does 
such  conduct  amount  to  the  intentional  and 
wilful  misconduct  which  will  defeat  a  right 
to  compensation. 
For  other  cases,  see  Master  and  Servant, 

II.  a,  1,  in  Dig.  1-52  N.  S. 

(December  20,  1913.) 

Note.  —  As  to  refusal  of  injured  work- 
man to  have  operation  performed  as  bar  to 
compensation  under  workmen's  compensa- 
tion act,  see  annotation  following  this  case, 
post,  387, 
L.R.A.1916A. 


CERTIORARI  to  the  Industrial  Accident 
Board  to  review  a  judgment  affirming 
the  award  of  an  Arbitration  Committee 
in  favor  of  claimant  upon  a  claim  by  her 
for  compensation  for  the  death  of  her  hus- 
band, under  the  workmen's  compensation 
act.  Affirmed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Beaumont,  Smith,  &  Harris, 
for  plaintiffs  in  certiorari : 

At  common  law,  it  would  have  been  the 
duty  of  Jendrus  to  employ  a  competent 
surgeon  and  to  use  reasonable  care  in  his 
selection. 

Stover  v.  Bluehill,  51  Me.  441;  Reed  v. 
Detroit,  108  Mich.  224,  65  N.  W.  967. 

If  the  employee  unreasonably  refuses  the 
medical  attention  offered  by  the  employer, 
he  forfeits  his  compensation,  and  the  Eng- 
lish law  does  not  burden  the  employer  with 
the  duty  of  providing  this  medical  attend- 
ance. 

Donnelly  v.  William  Baird  &  Co.  45  Scot. 
L.  R.  394,"  [1908]  S.  C.  536,  1  B;  W.  C.  C. 
95;  Warncken  v.  Richard  Moreland  &  Son, 
100  L.  T.  N.  S.  12,  [1908]  W.  N.  252,  [1909] 
1  K.  B.  184,  78  L.  J.  K.  B.  N.  S.  332,  25 
Times  L.  R.  129,  53  Sol.  Jo.  134,  2  B.  W.  C. 
C.  350;  Tutton  v.  The  Majestic,  100  L.  T. 
N.  S.  644,  [1909]  2  K.  B.  54,  78  L.  J.  K.  B. 
N.  S.  530,  25  Times  L.  R.  452,  53  Sol.  Jo. 
447,  2  B.  W.  C.  C.  346;  Paddington  Bor- 
ough Counsel  v.  Stack,  2  B.  W.  C.  C.  402. 

Mr.  William  W.  MacPherson  for  de- 
fondant  in  certiorari. 


382 


WORKMEN'S  COMPENSATION. 


Stone,  J.,  delivered  the  opinion  of  the 
court : 

The  claimant  and  appellee  is  the  widow 
of  Joseph  Jendrus,  who  died  on  February 
19,  1913.  Joseph  Jendrus,  a  native  of  Po- 
land, was  on  February  14,  3913,  an  em- 
ployee of  the  appellant  Detroit  Steel  Prod- 
ucts Company,  which  was  then  insured 
under  the  workmen's  compensation  act  by 
the  appellant  Michigan  Workmen's  Compen- 
sation Mutual  Insurance  Company.  Joseph 
Jendrus  was,  at  the  date  last  named,  also 
subject  to  the  compensation  act.  On  Friday, 
February  14,  1913,  at  about  2  o'clock  in  the 
afternoon,  Jendrus,  while  in  good  health  and 
vigor,  was  at  work  for  his  said  employer, 
polishing  a  spring  scroll,  when  the  end  of  the 
scroll  caught  on  a  belt  of  a  machine,  and 
swung  around  and  struck  him  violently  in 
the  abdomen.  Jendrus  was  immediately 
placed  on  a  stretcher  and  sent  to  Harper 
Hospital.  The  insurance  company  was  no- 
tified, and  its  surgeon,  Dr.  W.  H.  Hutchings, 
reached  the  hospital  before  the  ambulance 
arrived.  He  looked  at  Jendrus  before  he  was 
taken  into  the  hospital.  Before  Jendrus  was 
taken  into  the  ward,  samples  of  his  urine 
and  his  blood  were  taken,  and  he  was  then 
put  to  bed.  As  soon  as  this  was  done,  the 
surgeon  examined  him,  and  found  "a  tender- 
ness, very  slight,  almost  no  sign  of  contusion 
on  the  outside,  just  a  little  redness."  This 
was  on  the  right  side  between  the  ribs  and 
the  hip.  This  was  at  2  p.  M.  A  delay  was 
necessary  for  the  blood  examination.  At  4 
o'clock  Dr.  Hutchings  saw  Jendrus  again. 
He  then  complained  of  much  pain,  and  there 
was  marked  muscular  rigidity  over  the  area 
where  the  blow  appeared  to  have  struck.  At 
8  o'clock  P.  M.  another  examination  was 
made.  The  area  of  hardness  was  then 
spreading.  The  blood  examination  had 
shown  no  internal  hemorrhage,  the  urine  no 
blood,  and  the  surgeon,  with  this  informa- 
tion, diagnosed  the  case  as  that  of  a  rup- 
tured intestine.  At  this  hour  Jendrus's  tem- 
perature was  arising.  The  surgeon,  to  con- 
firm his  diagnosis,  asked  Drs.  George  Mc- 
Kean  and  Angus  McLean  to  see  the  injured 
man.  They  each  examined  him  at  about  8 
o'clock,  and  confirmed  Dr.  Hutchings's  opin- 
ion, and  they  joined  him  in  saying  that  an 
immediate  operation  was  necessary.  At  this 
time  the  claimant  and  an  elderly  man  were 
at  the  bedside  of  the  patient.  Jendrus  spoke 
very  little  English,  and  Dr.  Hutchings  could 
not  speak  Polish.  He  and  the  man  spoke  Ger- 
man, and  the  doctor  explained  to  him  the 
necessity  for  an  operation.  Upon  this  sub- 
ject Dr.  Hutchings  testified  before  the  com- 
mittee of  arbitration  as  follows:  "I  told 
him  that,  if  my  diagnosis  was  correct,  that 
without  an  operation  he  was,  in  my  opinion, 
sure  to  die;  that,  if  he  was  operated  on  at 
L.R.A.1916A. 


that  time,  he  had  about  nine  chances  out 
of  ten  of  getting  well.  I  thoroughly  ex- 
plained that  the  longer  he  delayed  the  opera- 
tion, the  so  much  worse  it  was  for  his 
chances;  that,  if  he  delayed  long  enough, 
there  would  be  no  use  of  operating.  Dr. 
McLean  and  Dr.  McKean  said  the  same 
thing.  I  was  not  satisfied  from  the  at- 
titude of  the  man  I  talked  with  that  he  had 
told  him  what  I  said.  I  was  not  sure  that 
he  did.  So  I  sent  down  and  got  one  of  the 
maids  there  who  spoke  English  very  well, 
and  who  is  Polish  also,  called  her  in  and 
said  to  her,  'I  want  you  to  tell  this  man 
what  I  say  to  you.'  This  was  around  8 
o'clock.  'You  tell  him  that,  if  our  diagno- 
sis is  correct,  that  if  he  is  not  operated  on, 
he  will  surely  die.'  I  said,  'If  you  are  oper- 
ated on  now,  as  soon  as  we  can,  your 
chances  of  getting  well  are  about  nine  out  of 
ten;  the  longer  you  delay  this,  so  much 
you  take  away  from  your  chances  of  re- 
covery; if  you  delay  it  until  you  are  pret- 
ty near  dead,  probably  an  operation  will 
do  you  no  good.'  This  Polish  girl  explained 
this  to  the  man,  and  he  said,  'No.'  I  could 
see  him  shake  his  head.  It  was  apparent 
from  his  general  attitude  that  he  would 
not  have  it,  so  I  went  away.  ...  1  went 
away  leaving  instructions,  if  they  changed 
their  minds,  they  were  to  call  me." 

While  the  doctors  were  there  in  consulta- 
tion, the  patient  vomited  a  little  fluid.  Dr. 
McLean  testified :  "It  was  fecal  in  odor,  but 
was  not  of  a  poisonous  nature."  Dr.  McKean 
testified:  "It  was  almost  a  fecal  vomit,  due 
to  reverse  acting  of  the  peristalsis.  It  was 
just  the  beginning  of  peritonitis. 
It  was  approaching  the  fecal  vomiting  time." 
The  patient  was  kept  quiet  during  the  night. 
The  next  morning  when  Dr.  Hutchings  again 
saw  him  he  was  worse.  The  doctor  testified : 
"His  pulse  was  rapid,  the  whole  abdomen 
was  distended  and  tender,  and  the  typical 
signs  of  advanced  peritonitis;  that  is,  he  was 
vomiting  considerable  quantities  of  fecal 
matter,  which  by  that  time  had  become 
markedly  fecal." 

The  patient  would  not  consent  in  the 
morning  to  an  operation.  Dr.  Hutchings 
went  to  attend  to  some  other  operations.  Be- 
tween 11:30  A.  M.  and  12  o'clock  another 
physician  had  been  called  by  the  Jendrus 
family,  and  he  testified  that  when  he  ar- 
rived Jendrus  had  consented  to  be  operated 
upon.  Dr.  Hutchings  testified  that  it  was 
about  12:30  p.  M.  when  he  was  told  by  the 
nurse  that  Jendrus  had  consented  to  an  op- 
eration. A  room  was  ordered  prepared,  and 
the  patient  was  operated  upon  at  1 :30  P.  M. 
This  was  as  soon  as  the  arrangements  could 
be  made.  The  house  staff  was  present  and 
assisted.  There  was  testimony  that  the 
vomiting  had  grown  worse,  and  it  had  been 


JENDRUS  v.  DETROIT  STEEL  PRODUCTS  CO. 


persistent  all  the  morning,  and  the  distend- 
ed condition  of  the  abdomen  had  developed 
about  9  o'clock.  Because  of  the  vomiting 
Dr.  Hutchings  directed  the  assistants  to  use 
nitrous  oxid  as  the  anesthetic  as  being 
less  likely  to  produce  vomiting.  Just  as 
the  patient  was  going  under  the  influence  of 
the  anesthetic  a  large  quantity  of  fecal 
vomitus  came  up,  and  some  of  it  went  down 
in  his  lungs.  They  turned  his  head  over  in 
the  endeavor  to  rid  him  of  this.  The  sur- 
geon testified  that  there  was  no  way  that 
this  vomitus  getting  into  the  lungs  could 
be  avoided.  Dr.  Hutchings  proceeded  with 
the  operation,  which  took  about  ten  minutes. 
He  made  the  ordinary  incision  and  found 
a  complete  peritonitis.  The  intestines  were 
so  congested  that  he  did  not  attempt  to  re- 
move them  and  find  the  perforation.  He 
inserted  drainage  in  the  abdomen,  and  began 
transfusing  a  salt  solution  subcutaneously. 
Following  the  operation  Jendrus's  condition 
improved.  His  temperature  went  down; 
the  vomiting  became  less,  but  his  breathing 
remained  rapid.  There  was  trouble  about 
washing  out  his  stomach.  He  had  refused  to 
have  this  done,  but  finally  consented. 

Two  days  after  the  operation  pneumonia 
developed,  and  Dr.  Ernest  Haass  was  called. 
He  found  the  patient  suffering  from  aspira- 
tion, or  "swallow"  pneumonia.  This  was  on 
Monday.  The  next  two  days  the  lungs  so- 
lidified, and  the  patient  died  of  pneumonia, 
in  the  opinion  of  most  of  the  physicians. 
Dr.  McLean,  however,  testified  that,  while 
he  saw  him  but  a  few  times,  he  did  not 
think  he  died  of  pneumonia;  he  thought  it 
was  the  peritonitis  that  was  the  cause  of 
his  death,  but  testified  that  he  did  not  see 
the  patient  after  he  had  pneumonia.  After 
Jendrus's  death  a  post  mortem  was  per- 
formed by  Dr.  Sill,  and  it  confirmed  the 
diagnosis  of  the  surgeon. 

The  lungs  were  found  to  be  solidified, 
and  Dr.  Sill  testified,  among  other  things, 
as  follows: 

I  think  that  the  pneumonia  process  dis- 
covered was  as  potent  a  factor  in  causing 
the  death  as  the  peritonitis.  I  would  call 
that  what  we  term  the  immediate  cause  of 
death. 

Q.  Was  there  any  way  for  you  to  deter- 
mine whether  or  not  the  pneumonia  was 
caused  by  inspiration  of  material,  of  vomi- 
tus? 

A.  Simply  that  it  was  a  disseminated 
bronchial  pneumonia.  .  .  .  The  pneu- 
monia process  was  still  active.  I  mean  that 
the  inflammation  was  going  on.  I  think  the 
man  died  from  toxemia.  I  hold  from  my 
post  mortem  findings  that  the  pneumonia 
process  was  the  most  active  toxic  process 
going  on  at  the  time  of  his  death.  I  form 
L.R.A.1916A. 


that  opinion  from  the  fact  that  the  perito- 
nitis was  beginning  to  localize,  beginning  to 
subside.  I  don't  think  I  could  say  that 
pneumonia  was  sufficient  to  have  caused 
death  without  the  complicated  inflammation 
of  the  peritonitis.  The  peritonitis  and  the 
|  pneumonia  together  were  sufficient  to  cause 
death ;  but  whether  the  pneumonia  alone 
would  have  caused  death  I  could  not  answer. 
I  think  pneumonia  was  the  imme- 
diate cause  of  death.  If  he  had  not  had 
pneumonia,  he  would  not  have  died  when  he 
did  die,  and  he  might  have  recovered  from 
his  peritonitis. 

Q.  Nothing  certain  about  that,  about 
him  recovering  from  the  peritonitis? 

A.  I  could  not  swear  that  he  would 
recover;  no. 

Q.  Are  you  able  to  tell  from  your  post 
mortem  findings,  or  are  you  able  to  state, 
which  was  the  greatest  factor  in  his  death 
production,  eliminating  the  fact  that  his 
pneumonia  came,  as  stated  by  Dr.  Hutch- 
ings, from  the  inspiration  of  material  vom- 
ited? 

A.  No;  I  don't  think  I  can  state  that.  I 
don't  think  I  can  state  which  was  the 
greatest  factor  in  his  death,  eliminating 
the  fact  that  his  pneumonia  came  from  the 
inspiration  of  material  vomited. 

The  perforation  of  the  intestine  was  lo- 
cated at  the  post  mortem.  On  separating 
the  coils  of  the  intestines  a  perforation  the 
size  of  a  Canadian  5-cent  piece  was  found 
in  the  ileum,  2$  feet  from  the  caput  coli. 
None  of  the  physicians  testified  that  Jen- 
drus  would  surely  have  recovered  from  the 
operation  if  it  had  been  performed  Friday 
night ;  but  there  was  testimony  that  an  ear- 
ly operation  presented  the  only  chance  for 
saving  his  life. 

After  the  death  of  Jendrus  the  claimant 
here  made  claim  for  compensation.  A  com- 
mittee of  arbitration  was  appointed,  test- 
imony taken,  and  the  award  was  in  favor  of 
the  claimant  for  the  sum  of  $10  per  week 
for  a  period  of  300  weeks  from  the  14th 
day  of  February,  1913. 

Thereafter  a  review  of  this  award  was 
had,  and  the  Industrial  Accident  Board  af- 
firmed it,  filing  an  opinion  and  finding  of 
facts,  as  follows:  "In  this  case  the  de- 
ceased, Joseph  Jendrus,  was  injured  by  a 
severe  blow  on  the  abdomen.  The  doctors 
attending  the  injured  man  diagnosed  the 
injury  as  a  probable  rupture  of  the  intes- 
tine, and  advised  an  operation.  The  ac- 
cident occurred  about  1  o'clock  in  the  after- 
noon on  February  14th.  At  about  8  or 
8 : 30  in  the  evening  the  doctors  sought  to 
operate  on  the  injured  man.  It  appears  that 
he  could  not  talk  English,  and  communi- 
cation was  had  with  him  through  an  in- 
terpreter. The  injured  man  shook  his 


384 


WORKMEN'S  COMPENSATION. 


head,  indicating  a  refusal  to  be  operated  on. 
The  matter  of  an  operation  was  again 
brought  up  by  the  doctors  on  the  following 
morning,  February  15th.  Jendrus,  at  that 
time,  refused  to  submit  to  the  operation,  but 
consented  at  about  11:30  A.  M.  The  opera- 
tion was  performed  about  1.30  P.  M.  on  Feb- 
ruary loth.  It  seems  that  during  the  opera- 
tion the  patient  vomited,  and  the  vomit  was 
drawn  into  the  lungs,  causing  pneumonia, 
and  resulting  in  his  death  a  few  days  later. 
The  operation  disclosed  a  rupture  of  the  in- 
testines which  was  not  sutured,  and  the 
post  mortem  examination  showed  the  same 
to  be  in  process  of  healing  at  the  time  of 
death.  All  communication  with  the  de- 
ceased after  the  injury  was  through  an  in- 
terpreter. The  Board  is  of  the  opinion  that 
the  refusal  to  be  operated  on  when  first 
requested,  and  the  further  action  of  de- 
ceased in  delaying  consent  to  the  operation 
until  nearly  noon  on  the  day  following  the 
accident,  was  not  so  unreasonable  and  per- 
sistent as  to  defeat  the  claim  for  com- 
pensation in  this  case.  He  did  submit  to 
the  operation  after  being  convinced  that  it 
was  absolutely  necessary.  It  'seems  that 
nearly  two  hours  elapsed  from  the  time  he 
gave  his  consent  until  the  operation  was 
performed.  It  is  by  no  means  certain 
that  an  earlier  operation  would  have  saved 
his  life,  nor  is  it  certain  that  the  opera- 
tion actually  performed  would  not  have 
resulted  in  his  recovery  were  it  not  for  the 
fact  that  he  vomited  while  under  the  anes- 
thetic, and  inhaled  some  of  the  vomit,  caus- 
ing pneumonia.  It  seems  clear  that  the  op- 
eration was  not  too  late  to  remedy  the  ab- 
dominal injury  caused  by  the  accident.  The 
vomiting  and  resulting  pneumonia  came  as 
an  incident  to  the  operation.  The  fact  that 
the  deceased  was  unable  to  speak  English 
and  was  unaccustomed  to  the  ways  of  this 
country  should  be  given  some  weight.  The 
judgment  and  decision  of  the  arbitration 
committee  is  affirmed." 

There  was  a  motion  to  amend  the  find- 
ings, which  was  refused  except  in  one  in- 
stance,- to  which  action  there  was  no  excep- 
tion or  error  assigned,  and  the  matter  of 
refusal  to  amend  is  not  before  us. 

The  case  is  here  upon  certiorari  to  review 
the  action  of  the  Industrial  Accident  Board. 

The  following  grounds  of  error  are  as- 
signed by  appellants  in  the  affidavit  for  the 
writ  of  certiorari: 

(a)  "The  Industrial  Accident  Board  erred 
in  affirming  the  said  judgment  and  decision 
of  the  said  arbitration  committee. 

(b)  "The      Industrial      Accident      Board 
erred  in   deciding  that  the  refusal   of   said 
Joseph  Jendrus  to  be  operated  on  when  first 
requested,    and    further    action    of    the    de- 
ceased in  delaying  consent  to  the  operation, 
L.R.A.1916A. 


was  not  so  unreasonable  and  persistent  as 
to  defeat  the  claim  for  compensation. 

(c)  "The  said  Industrial  Accident  Board 
erred    in    holding    that   the   refusal    of   the 
said    Joseph    Jendrus    to    be    operated    on 
was  not   so   unreasonable   as   to   defeat  the 
claim  for  compensation. 

(d)  "Said     Industrial     Accident     Board 
erred   in   deciding   that  the   refusal   of   the 
said  Joseph  Jendrus  was  not  so  persistent 
as  to  defeat  the  claim  for  compensation  in 
that  the  refusal  to  submit  to  an  operation, 
if  unreasonable,  need  not  be  persistent  to  de- 
feat  the   claim   for   compensation. 

(e)  "Said    Industrial    Accident    Board 
likewise   erred    in   their    conclusion   of    law 
that  the  said  refusal  was  not  so  persistent 
as  to  defeat  the  claim  for  compensation  in 
that,  as  a  matter  of  law,  the  said  refusal 
need  not  be  persistent  to  defeat  said  claim. 

(f)  "Said     Industrial     Accident     Board 
erred    in    its    conclusion    of    law    that    the 
said  refusal  was  not  unreasonable. 

(g)  "That     said     Industrial     Accident 
Board  erred  in  their  decision,  because  it  ap- 
pears from  the  testimony  that  the  said  Jo- 
seph Jendrus  did  not  come  to  his  death  as 
a  result  of  the  said  injury  for  which  com- 
pensation was  claimed,  but  he  came  to  his 
death   by   reason   of   his   refusal   to   permit 
the   medical   attention  offered  him  by   said 
respondents,  Michigan  Workmen's  Compen- 
sation Mutual  Insurance  Company  and  the 
Detroit   Steel   Products   Company. 

(h)  "The  said  Industrial  Accident  Board 
erred  in  holding,  as  a  matter  of  law,  that 
the  death  of  the  said  deceased  was  not  a 
result  of  his  intentional  and  wilful  miscon- 
duct. 

( i )  "The  Industrial  Accident  Board  erred 
in  holding,  as  a  matter  of  law,  that  the 
claimant  was  entitled  to  compensation  as 
widow  of  the  said  Joseph  Jendrus;  he  hav- 
ing refused  to  consent  to  the  medical  at- 
tendance offered  by  the  said  employer,  the 
Detroit  Steel  Products  Company,  and  the 
Michigan  Workmen's  Compensation  Mutual 
Insurance  Company,  petitioners  herein." 

Section  12  of  part  3  of  the  act  (act  Xo. 
10,  Public  Acts  of  1912)  provides  that  the 
finding  of  fact  made  by  the  said  Industrial 
Accident  Board,  acting  within  its  powers, 
I  shall,  in  the  absence  of  fraud,  be  conclu- 
sive, but  the  supreme  court  shall  have  pow- 
er to  review  questions  of  law  involved  in 
any  final  determination  of  said  Industrial 
Accident  Board.  No  question  is  raised  in 
this  case  involving  the  validity  or  consti- 
tutionality of  the  act  in  question.  No 
claim  of  fraud  is  here  presented. 

The  appellants  state  in  their  brief  that 
the  questions  involved  are :  ( 1 )  Did  the  in- 
jury arise  out  of  and  in  the  course  of  the 


JENDRUS  v.  DETROIT  STEEL  PRODUCTS  CO. 


385 


employment?     (2)  Was  the  employee  guilty    course   suggested   presents   the   only   oppor- 
tunity for  the  saving  of  the  life,  we  insist 


of  intentional  misconduct? 

It  is  said  that  these  questions  are  close- 
ly related,  since  it  is  clear  that,  if  the  em- 
ployee had  been  guilty  of  intentional  and 
wilful  misconduct,  he  could  not  be  acting 
within  the  course  of  his  employment.  We 
quote  from  appellants'  brief  as  follows: 

"Manifestly,  the  original  injury — the 
striking  'of  the  spring  against  the  abdomen 
of  Jendrus — arose  in  the  course  of  the  em- 
ployment, and  arose  out  of  the  employment, 
and  there  is  no  showing  that  it  was  caused 
by  the  wilful  misconduct  of  Jendrus.  But 
the  claim  here  is  for  compensation  by  rea- 
son of  the  death  of  Jendrus.  The  question 
then  is,  did  the  death  occur  from  that  in- 
jury, or  was  it  caused  by  some  other  acci- 
dent, act,  or  injury?  .  .  .  Here  Jendrus 
had  entered  into  an  agreement  by  which  he 
had  undertaken  to  accept  from  his  employer 
reasonable  medical  treatment  and  hospital 
services.  The  employer  had  undertaken 
that  for  a  limited  period  of  time  it  would 
furnish  this  service.  That  agreement  was 
offered  to  the  employee  as  a  part  considera- 
tion for  his  yielding  up  his  right  of  action 
at  common  law.  But  it  rests  as  well  upon 
another  theory,  which  is  that  the  employer, 
by  reason  of  the  fact  that  it  undertook  to 
pay  the  injured  employee  a  percentage  of 
his  earnings  during  the  period  of  his  dis- 
ability, should  have  the  right,  as  it  was 
its  duty,  to  furnish  the  medical  attend- 
ance to  that  employee  in  order  to  minimize 
the  injury  and  the  consequent  compensa- 
tion." 

"When,  therefore,  Jendrus  refused  the 
medical  attendance  offered  by  his  employer, 
he  refused  that  which  the  employer  had  un- 
dertaken to  give  him,  and  he  refused  a 
service  that  it  was  important  for  the  em- 
ployer to  render  by  reason  of  the  relation 
which  it  bore  to  the  compensation  that  the 
employer  must  pay  for  disability  or  death. 
.  .  .  The  workmen's  compensation  statute 
specifically  provides  that  the  injury  must 
arise  out  of  the  employment,  and  specifical- 
ly negatives  a  recovery  where  there  is  in- 
tentional and  wilful  misconduct.  It  is  true 
that  the  statute  disregards  negligence;  but 
there  still  must  remain,  before  there  can  be 
a  recovery,  a  showing  that  the  injury  did 
result  from  an  accident  arising  out  of  the 
employment,  and  not  from  any  other  cause." 

"It  would  be  a  harsh  rule  that  bound  an 
employee  who  had  been  injured  to  accept  in 
all  cases  the  dictum  of  a  surgeon  who  ad- 
vises an  operation.  Manifestly  the  em- 
ployee cannot  be  called  upon  at  all  times 
and  under  all  circumstances  to  place  him- 
self absolutely  in  the  hands  of  the  employ- 
er's surgeon;  but,  where  there  is  no  dis- 
pute amongst  his  medical  advisers,  0nd  the 


that  that  refusal  is  a  new  and  controlling 
cause  for  the  injury  for  which  recovery  is 
sought." 

Counsel  for  appellants  call  attention  to 
the  English  act  which  provides,  as  ours 
does,  for  the  payment  for  injuries  arising 
out  of  and  in  the  course  of  the  employ- 
ment, but  that  that  act  does  not  provide 
for  medical  care  by  the  employer ;  and  it 
is  urged  that  in  Michigan,  if  the  employee 
refuses  the  reasonable  medical  services  ten- 
dered by  the  employer,  he  is  refusing  com- 
pensation, and  should  not  be  permitted  to 
compel  the  employer  to  pay  the  money 
compensation,  while,  at  the  same  time,  he 
is  refusing  to  accept  the  medical  compensa- 
tion. It  is  urged  that  under  the  English 
decisions  the  rule  has  been  universally 
laid  down  that,  if  the  employee  unreason- 
ably refuses  to  accept  the  medical  attention 
offered  by  the  employer,  he  forfeits  his 
compensation.  And  our  attention  has  been 
called  to  the  following  English  cases :  Don- 
nelly v.  William  Baird  &  Co.  (Ct.  of  Sess.) 
45  Scot.  L.  R.  394,  1  B.  W.  C.  C.  95. 

In  that  case  a  workman,  in  the  course  of 
his  employment,  had  suffered  injury  to  his 
left  hand,  in  respect  of  which  he  was  re- 
ceiving compensation.  On  application  by 
the  employers  to  stop  the  payment  of  com- 
pensation on  the  ground  that  the  continued 
incapacity  for  work  resulted  from  the  work- 
man refusing  to  undergo  surgical  treatment, 
the  sheriff's  substitute  found  that  the  opera- 
tions suggested  by  the  doctors  were  simple 
or  minor  operations,  not  attended  with  ap- 
preciable risk  or  serious  pain,  likely,  if  sub- 
mitted to,  to  restore  the  workman's  capaci- 
ty for  work,  and  that  the  workman  was  of 
good  constitution  and  sound  general  health; 
he  thereupon  ended  the  payment  of  com- 
pensation. The  court  of  sessions,  two 
justices  dissenting,  held  that,  upon  the  find- 
ings of  the  sheriff's  substitute,  his  decision 
was  right. 

In  the  course  of  his  opinion,  Lord  Justice 
Clerk  said:  "The  question  whether  a  re- 
fusal to  submit  to  skilled  treatment  for  the 
restoration,  whole  or  partial,  of  capacity 
for  work  is  an  unreasonable  refusal  is  nec- 
essarily a  question  of  degree.  For  it  can- 
not be  maintained  that  no  matter  what  be 
the  severity  of  the  operation  recommended, 
or  how  great  soever  the  risk  to  life  or  gen- 
eral health  of  the  treatment,  the  workman 
loses  right  to  compensation  unless  he  brings 
himself  to  undergo  the  treatment  and  to 
take  the  risk.  I  think  the  sound  view  on 
this  matter  is  well  expressed  by  Lord  Adam 
in  the  case  of  Dowds  v.  Bennie,  40  Scot. 
L.  R.  219,  5  Sc.  Sess.  Cas.  5th  series,  268, 
10  Scot.  L.  T.  439,  when  he  laid  it  down 


L.R.A.1916A. 


25 


386 


WORKMEN'S  COMPENSATION. 


that  a  workman  who  has  been  incapacitat- 
ed is  not  bound  in  every  case  to  submit 
to  any  medical  or  surgical  treatment  that 
is  proposed,  under  penalty,  if  he  refuses, 
or  forfeiture  of  his  right  to  a  weekly  pay- 
ment— e.  g.,  in  the  case  where  a  serious 
surgical  operation  is  proposed  with  more 
or  less  probability  of  a  successful  cure. 
On  the  other  hand,  I  hold  it  to  be  the  duty 
of  an  injured  workman  to  submit  to  such 
treatment,  medical  or  surgical,  as  involves 
no  serious  risk  or  suffering, — such  an  op- 
eration as  a  man  of  ordinarily  manly  char- 
acter would  undergo  for  his  own  good;  in 
a  case  where  no  question  of  compensation 
due  by  another  existed.  In  preparing  this 
opinion  I  find  that  I  have  used  almost  the 
terms  which  are  to  be  found  in  the  case  of 
Anderson  v.  Baird,  40  Scot.  L.  R.  263,  5  Sc. 
Sess.  Cas.  5th  series,  373.  These  two  cases 
which  I  have  referred  to  seem  to  me  to 
practically  rule  this  case." 

Lord  M'Laren  said :  "There  is,  of  course, 
no  question  of  compelling  the  party  to  sub- 
mit to  an  operation.  The  question  is  wheth- 
er a  party  who  declines  to  undergo  what 
would  be  described  by  experts  as  a  reason- 
able and  safe  operation  is  to  be  considered 
as  a  sufferer  from  the  effect  of  an  in- 
jury received  in  the  course  of  his  employ- 
ment, or  whether  his  suffering  and  conse- 
quent inability  to  work  at  his  trade  ought 
not  to  be  attributed  to  his  voluntary  action 
in  declining  to  avail  himself  of  reasonable 
sursrical  treatment.  In  order  to  test  the 
principle  of  decision  I  will  suppose  a  more 
simple  case.  A  workman  whose  trade  re- 
quires the  perfect  use  of  both  hands — a 
watchmaker  or  an  instrument  maker,  for 
example — has  the  misfortune  to  break  one 
of  the  bones  of  a  finger,  and  from  want  of 
immediate  assistance,  or  it  may  be  from 
neglect,  the  bone  does  not  unite  in  the  prop- 
er way.  The  hand  is  disabled;  but  he  is  ad- 
vised that  by  breaking  the  bone  at  the  old 
fracture  and  resetting  it  the  use  of  his 
hand  will  be  completely  restored.  I  am 
supposing  the  case  where  the  operation  is 
not  attended  with  risk  to  health  or  un- 
usual suffering,  and  where  the  recovery  of 
the  use  of  the  hand  is  reasonably  clear. 
If  in  such  a  case  the  sufferer,  either  from 
defect  of  moral  courage,  or  because  he  is 
content  with  a  disabled  hand  and  is  willing 
to  live  on  the  pittance  which  he  is  receiv- 
ing under  the  compensation  act,  refuses  to 
be  operated  on,  I  should  have  no  difficulty 
in  holding  that  his  continued  inability  to 
work  at  his  trade  was  the  result  of  his  re- 
fusal of  remedial  treatment,  and  that  he 
was  not  entitled  to  further  compensation. 
Passing  to  the  other  extreme,  it  is  easy  to 
figure  a  case  of  internal  injury  where  an 
operation  if  successful  would  restore  the 
L.R.A.1916A. 


sufferer  to  health,  but  where  the  surgeon 
was  bound  to  admit  that  the  operation  was- 
attended  with  danger.  In  such  a  case  it 
would  be  generally  admitted  that  there  was- 
not  only  a  legal  but  a  moral  right  of  elec- 
tion on  the  part  of  the  injured  person;  and, 
if  he  preferred  to  remain  in  his  disabled, 
condition  rather  than  incur  the  risk  of 
more  serious  disablement  or  death,  it  could 
not  be  said  that  his  inaction  disentitled  him, 
to  further  compensation.  In  view  of  the- 
great  diversity  of  cases  raising  this  ques- 
tion, I  can  see  no  general  principle  except 
this:  that  if  the  operation  is  not  attend- 
ed with  danger  to  life  or  health,  or  ex- 
traordinary suffering,  and  if,  according  to  the 
best  medical  or  surgical  opinion,  the  op- 
eration offers  a  reasonable  prospect  of  res- 
toration or  relief  from  the  incapacity  from 
which  the  workman  is  suffering,  then  he 
must  either  submit  to  the  operation  or  re- 
lease his  employers  from  the  obligation  to- 
maintain  him.  In  other  words,  the  statu- 
tory obligation  of  the  employer  to  give- 
maintenance  during  the  period  of  incapaci- 
ty resulting  from  an  accident  is  subject 
to  the  implied  condition  that  the  work- 
man shall  avail  himself  of  such  reasonable- 
remedial  measures  as  are  within  his  power." 

Our  attention  is  also  directed  to  the  case- 
of  Warncken  v.  Richard  Moreland  &  Son, 
(C.  A.  Eng.  ]908)  TOO  L.  T.  N.  S.  12,  2 
B.  W.  C.  C.  350.  There  it  was  held  that,, 
where  a  workman  was  injured  by  an  ac- 
cident in  respect  of  which  he  was  other- 
wise entitled  to  receive  compensation,  and 
refused  to  submit  to  a  surgical  operation  of 
a  simple  character,  involving  no  serious 
risk  to  life  or  health,  and  which,  according 
to  the  unanimous  professional  evidence,  of- 
fered a  reasonable  prospect  of  the  removal 
of  the  incapacity  from  which  he  suffered,, 
that  under  those  circumstances  he  had  de- 
barred himself  from  any  right  to  claim  fur- 
ther compensation  under  the  act  for  his 
continued  disability,  as  such  continuance 
was  not  attributable  to  the  original  acci- 
dent, but  to  his  unreasonable  refusal  to- 
avail  himself  of  surgical  treatment.  In 
that  case  the  claimant  had  injured  his  foot 
and  had  had  two  toes  removed.  He  still  suf- 
fered pain,  and  the  X-rays  showed  that  a 
piece  of  bone  was  loose  in  the  big  toe.  The- 
doctors  advised  an  operation;  but  the  man 
refused.  Moulton,  L.  J.,  said:  "To  hold 
the  contrary  would  lead  to  this  result,  that 
a  workman  who  had  an  injury,  however 
small,  might  refuse  to  allow  it  to  be  dressed, 
and  let  a  trivial  burn,  say,  become  a 
sloughing  sore,  and  lea.d  to  partial  or  to- 
tal incapacity.  .  .  .  The  distinction  is- 
between  being  reasonable  and  not  being 
reasonable." 

This   case   was   followed   by   the   case  of 


JENDRUS  v.  DETROIT  STEEL  PRODUCTS  CO. 


387 


Tutton  v.  The  Majestic  (C.  A.  1909)  100 
L.  T.  644,  2  B.  W.  C.  C.  346.  It  was  there 
held  that  a  workman  injured  by  an  acci- 
dent arising  out  of  and  in  the  course  of 
his  employment  within  the  meaning  of  the 
act,  who  refuses,  on  the  advice  of  his  own 
doctor,  to  submit  to  the  surgical  operation 
which,  in  the  opinion  of  such  medical  man, 
involved  some  risk  to  his  life,  is  not  act- 
ing unreasonably  in  such  refusal,  and  is 
not  thereby  precluded  from  claiming  com- 
pensation from  his  employer  under  the  act 
in  respect  of  his  continued  disability  to 
work.  There  the  court  said:  "The  test 
is  not  really  whether  on  the  balance  of 
medical  opinion  the  operation  is  one  which 
might  reasonably  be  performed.  The  test 
is  whether  the  workman,  in  refusing  to  un- 
dergo the  surgical  operation,  acted  un- 
reasonably. I  altogether  decline  to  say 
that,  in  a  case  of  an  operation  of  this  kind, 
a  workman  can  be  said  to  act  unreasonably 
in  following  the  advice  of  an  unimpeached 
and  competent  doctor,  even  though  on  the 
balance  of  medical  evidence  given  at  a  sub- 
sequent date  the  learned  county  court  judge 
might  hold  that  the  operation  was  in  its 
nature  one  which  might  reasonably  and 
properly  be  performed."  Here  the  appli- 
cant was  a  sailor  on  board  the  steamship 
Majestic,  and  met  with  an  accident  which 
resulted  in  double  rupture.  He  went  to 
the  hospital  at  Southampton,  where  the 
doctor  advised  an  operation.  The  appli- 
cant then  consulted  another  surgeon,  who 
advised  him  not  to  undergo  an  operation, 
as  he  was  suffering  from  Bright's  disease 
of  the  kidneys,  which  would,  in  his  opinion, 
render  it  dangerous  for  him  to  have  an  an- 
esthetic administered;  the  physician  say- 
ing that  it  would  be  barbarous  for  him  to 
undergo  an  operation  without  an  anesthetic 
With  kidney  disease  an  anesthetic  would  be 
a  risk  to  his  life. 

The  appellee  has  called  our  attention  to 
the  case  of  Marshall  v.  Orient  Steam  Nav. 
Co.  [1910]  1  K.  B.  79,  79  L.  J.  K.  B.  N.  S. 
204,  [1909]  W.  N.  225,  101  L.  T.  N.  S.  584, 
26  Times  L.  R.  70,  54  Sol.  Jo.  50,  3  B.  W. 
C.  C.  15,  to  the  effect  that,  where  an  in- 
jured party  refuses  to  undergo  a  surgical 
operation,  the  employer  has  the  burden  of 
showing  that  the  operation  would  have  ac- 
complished its  purpose. 

Attention  is  also  called  by  appellee  to  the 


case  of  Hay's  Wharf  v.  Brown,  3  B.  W.  C. 
C.  84,  to  the  effect  that  the  burden  is  upon 
the  employer  to  show  that  the  refusal  of 
the  workman  was  unreasonable. 

In  none  of  the  cases  cited  by  appellants' 
counsel  was  the  operation  anything  more 
than  a  minor  operation  for  a  trifling  injury. 
We  think  the  cases  clearly  distinguishable 
from  the  instant  case,  which  involved  a 
major  operation  of  a  serious  nature.  None 
of  the  testimony  in  the  case  goes  to  the 
length  of  showing  that  Jendrus's  life  would 
have  been  saved  had  the  operation  been  sub- 
mitted to  at  8  o'clock  on  the  evening  of 
February  14th,  which  was  the  first  time  that 
Dr.  Hutchings  had  reached  the  conclusion 
that  an  operation  was  necessary'.  Periton- 
itis had  already  set  in,  and  the  vomiting 
had  commenced,  and  vomitus  of  a  fecal  na- 
ture was  then  being  expelled.  That  it  was 
the  injury  which  caused  the  peritonitis  is 
not  questioned;  that  it  was  the  peritonitis 
which  cause  the  vomiting  of  fecal  matter  is 
not  questioned;  that  it  was  the  taking  of 
fecal  matter  into  the  lungs  which  caused 
the  pneumonia  is  claimed  by  all  the  sur- 
geons who  testified.  There  is  testimony 
that  he  might  have  recovered  without  any 
operation,  although  that  result  could  not 
have  been  reasonably  expected. 

Under  all  the  circumstances  of  the  case, 
including  the  fact  that  Jendrus  was  a  for- 
eigner, unable  to  speak  or  understand  the 
Knglish  language,  that  he  was  suffering: 
great  pain  on  the  evening  of  the  14th,  that 
he  was  unacquainted  with  his  surroundings, 
and  that  he  did  consent  to,  and  did  submit 
to,  an  operation  within  fifteen  or  sixteen 
hours  after  it  was  first  found  necessary,  in 
the  judgment  of  the  surgeons,  we  cannot 
hold,  as  matter  of  law,  that  the  conduct 
of  Jendrus  was  so  unreasonable  and  per- 
sistent as  to  defeat  the  claim  for  compensa- 
tion by  his  widow.  Neither  can  we  hold 
that  Jendrus,  by  his  conduct  in  the  premises, 
in  causing  a  delay  in  the  operation,  was. 
guilty  of  intentional  and  wilful  misconduct. 
We  cannot  say,  as  matter  of  law,  that  the 
Industrial  Accident  Board  erred  in  its  con- 
clusions of  law  in  affirming  the  action  of 
the  committee  on  arbitration.  No  other 
questions  of  law  are  presented  by  the  record. 

The  judgment  and  decision  of  the  said 
Board  is  therefore  affirmed,  with  costs 
against  appellants. 


Annotation — Refusal  of  injured  workman  to  have  operation  performed  as 
bar  to  compensation  under  workmen's  compensation  act. 


As  to  application  and  effect  of  work- 
men's compensation  acts  generally,  see 
annotation,  ante,  23. 

The  courts  very  generally  agree  with 
L.R.A.1916A. 


JENDRUS  v.  DETROIT  STEEL  PRODUCTS  Co. 
in  holding  that  whether  or  not  a  work- 
man who  has  been  injured  should  sub- 
mit to  an  operation  in  order  to  avoid  se- 


388 


WORKMEN'S  COMPENSATION. 


rious  consequences  of  the  injury,  is  a 
question  of  fact,  dependent  upon  the 
varying  circumstances  of  the  individual 
case. 

It  has  been  stated  by  the  Massachu- 
setts court  that  if  a  workman  is  not  to 
be  subjected  to  unusual  risks  and  danger 
arising  from  the  anesthetic  to  be  em- 
ployed, or  from  the  nature  of  the  pro- 
posed operation,  it  is  his  duty  to  sub- 
mit to  it  if  it  fairly  and  reasonably 
appears  that  the  result  of  such  operation 
will  be  a  real  and  substantial  physical 
gain.  Floccher  v.  Fidelity  &  Deposit 
Co.  (1915)  —  Mass.  — ,  108  N.  E.  1032. 
In  the  same  case  it  was  held  that  it 
would  be  unreasonable  to  require  an  in- 
jured workman  to  submit  to  an  operation 
upon  his  hand  where,  according  to  the 
expert  testimony,  it  would  be  "pretty 
close  to  being  permanently  incapacitated 
for  use  even  after  this  operation,"  and 
there  was  doubt  as  to  the  time  within 
which  some  uncertain  and  indetermi- 
nate degree  of  benefit  reasonably  might 
be  expected. 

The  New  Jersey  court  has  held  that 
the  refusal  of  an  employee  to  submit  to 
an  operation  cannot  be  said  to  be  un- 
reasonable where  it  appears  that  a  risk 
of  life  is  involved,  although  such  risk 
is  very  slight.  McNally  v.  Hudson  & 
M.  R.  Co.  (1915)  —  N.  J.  L.  — ,  95 
Atl.  122  (peril  to  life  was  about  48 
chances  in  23,000). 

And  the  same  court  has  also  held  that 
it  is  error  for  the  trial  court  to  make  an 
award  as  for  temporary  disability  upon 
the  theory  that  the  injury  may  be  cured 
by  an  operation,  and  that  it  is  the  duty 
of  the  employee  to  undergo  such  opera- 
tion. Feldman  v.  Braunstein  (1915)  — 
N.  J.  L.  — ,  93  Atl.  679;  McNally  v.  Hud- 
son &  M.  E.  Co.  (N.  J.)  supra. 

Under  the  English  act  the  cases  very 
generally  hold  that  a  workman  will  be 
denied  compensation  where  he  unrea- 
sonably refuses  to  undergo  an  opera- 
tion of  a  minor  character  which  would, 
in  the  opinion  of  medical  men,  restore 
his  earning  capacity.  Donnelly  v.  Wil- 
liam Baird  &  Co.  [1908]  S.  C.  (Scot.) 
536,  45  Scot.  L.  R.  394,  1  B.  W.  C.  C.  95 
(operation  of  a  simple  character,  not  at- 
tended with  appreciable  risk  or  serious 
pain,  and  likely  to  restore  to  the  work- 
man, in  a  large  measure  or  altogether, 
the  use  of  his  injured  hand) ;  Anderson 
v.  Baird  (1903)  5  Sc.  Sess.  Cas.  5th 
series,  373,  40  Scot.  L.  R.  263  (simple 
operation  not  attended  with  serious  risk 
or  pain) ;  Warncken  v.  Richard  More- 
land  &  Son  [1909]  1  K.  B.  (Eng.)  184 
[1908]  W.  N.  252,  25  Times  L.  R.  129, 
L.R.A.1936A. 


.53  Sol  Jo.  134,  78  L.  J.  K.  B.  N.  S. 
I  332,  100  L.  T.  N.  S.  12  2  B.  W.  C.  C. 
350  (operation  not  serious,  and  likely  to 
remove  incapacity) ;  Paddington  Borough 
Counsel  v.  Stack  (1909)  2  B.  W.  C.  C. 
(Eng.)  402  (operation  trivial  and  ad- 
vised by  workman's  own  doctor) ;  Walsh 
v.  Lock  &  Co.  (1914)  110  L.  T.  N.  S. 
(Eng.)  452,  [1914]  W.  C.  &  Ins.  Rep. 
95,  7  B.  W.  C.  C.  117  (operation  not 
attended  with  much  pain  or  risk,  and 
would  in  all  probability  restore  work- 
man's capacity). 

And  a  workman  may  be  found  to  be 
unreasonable  in  refusing  to  undergo  an 
operation  although  two  doctors  said  that 
it  would  not  remove  the  incapacity, 
where  three  other  doctors  gave  as  their 
opinion  that  the  operation  would  remove 
the  incapacity,  and  the  advice  against 
having  the  operation  performed  was 
based  solely  upon  the  ground  that  it 
would  not  be  successful,  and  not  upon  the 
ground  of  the  risk  or  pain  involved  in 
having  the  operation  performed.  O'Neill 
v.  John  Brown  &  Co.  [1913]  S.  C.  653, 
[1913]  W.  C.  &  Ins.  Rep.  235,  50  Scot. 
L.  R.  450,  6  B.  W.  C.  C.  428. 

But  compensation  will  not  be  denied 
because  of  the  workman's  refusal  to  sub- 
mit to  a  serious  operation.  Rothwell  v. 
Davies  (1903)  19  Times  L.  R.  (Eng.)  423 
(operation  would  be  attended  with  a  cer- 
tain amount  of  risk). 

Nor  will  compensation  be  refused  upon 
the  ground  of  the  workman's  refusal  to 
have  an  operation  performed,  where  it 
is  questionable  whether  the  operation 
would  benefit  him.  Hawkes  v.  Coles 
(1910)  3  B.  W.  C.  C.  (Eng.)  163;  Mar- 
shall v.  Orient  Steam  Nav.  Co.  [1910]  1 
K.  B.  (Eng.)  79,  79  L.  J.  K.  B.  N.  S.  204, 
[1909]  W.  N.  225,  101  L.  T.  N.  S.  584, 
26  Times  L.  R.  70,  54  Sol.  Jo.  50,  3  B. 
W.  C.  C.  15;  Braithwaite  v.  Cox  (1911) 
5  B.  W.  C.  C.  (Eng.)  77. 

Nor  will  a  workman  be  compelled  to 
submit  to  an  operation  on  the  peril  of 
losing  his  right  to  compensation,  where 
his  own  doctor  advises  against  it.  Swee- 
ney v.  Pumpherston  Oil  Co.  (1903)  5  Sc. 
Sess.  Cas.  5th  series,  972,  40  Scot.  L.  R. 
731,  11  Scot.  L.  T.  279;  Tutton  v.  The 
Majestic  [1909]  2  K.  B.  (Eng.)  54,  78 
L.  J.  K.  B.  N.  S.  530,  100  L.  T.  N.  S.  644, 
25  Times  L.  R.  452,  53  Sol.  Jo.  447,  2 
B.  W.  C.  C.  346;  Moss  v.  Akers  (1911) 
4  B.  W.  C.  C.  (Eng.)  294. 

A  workman  cannot  be  claimed  to  be 
unreasonable  in  refusing  to  undergo  an 
operation  where  there  is  no  evidence  that 
the  operation  would  lessen  the  amount 
of  compensation  payable  by  the  employ- 
ers. Molamphy  v.  Sheridan  [1914]  W. 


REFUSAL  TO  HAVE  OPERATION. 


389 


C.  &  Ins.  Rep.  20,  47  Ir.  Law  Times,  250, 
7  B.  W.  C.  C.  957. 

Ordinarily  the  question  whether  the 
refusal  to  permit  an  operation  is  unrea- 
sonable depends  upon  the  facts  of  each 
case.  Ruabon  Coal  Co.  v.  Thomas  (1909) 
3  B.  W.  C.  C.  (Eng.)  32;  Hay's  Wharf 
v.  Brown  (1909)  3  B.  W.  C.  C.  (Eng.) 
84;  Burgess  &  Co.  v.  Jewell  (1911)  4  B. 
W.  C.  C.  (Eng.)  145;  Shirt  v.  Calico 
Printers'  Asso.  [1909]  2  K.  B.  (Eng.) 
51,  3  B.  R.  C.  62,  78  L.  J.  K.  B.  N.  S. 


528,  100  L.  T.  N.  S.  740,  25  Times  L.  R. 
451,  53  Sol.  Jo.  430;  Dolan  v.  Ward 
[1915]  W.  C.  &  Ins.  Rep.  (Eng.)  274,  8 
B.  W.  C.  C.  514. 

The  remedy  of  the  employer,  based 
upon  the  refusal  of  the  workman  to  have 
an  operation  performed,  lies  in  an  appli- 
cation to  have  the  award  varied,  and 
not  in  an  appeal  from  the  award.  O'Neill 
v.  Robner  (1908)  42  Ir.  Law  Times,  3,  2 
B.  W.  C.  C.  334.  W.  M.  G. 


KENTUCKY   COURT   OF   APPEALS. 

KENTUCKY  STATE  JOURNAL  COM- 
PANY, Appt., 

v. 
WORKMEN'S    COMPENSATION    BOARD. 

(161  Ky.  562,  170  S.  W.  1166.) 

Constitutional  law  —  waiver  of  rights. 

1.  An  employee  may,  by  contract,  waive 
the  benefit  of  a  constitutional  provision  de- 
priving the  general  assembly  of  the  power  to 
limit  the  amount  of  recovery  for  personal 
injuries. 

For  other  cases,  see  Contracts,  III.  in  Dig. 
1-52  N.  S. 

Master  and  servant  —  workmen's  com- 
pensation act  —  limiting  recovery  — 
constitutionality. 

2.  A   provision   in   a   workmen's   compen- 
sation act  that  if  an  employee  elects  not  to 
accept  the  provisions  of  the  act  he  cannot 
recover  of  the  employer  if  the  injury  was 
caused  or  contributed  to  by  the  negligence 
of  a  fellow  servant,  or  was  due  to  any  of 
the  ordinary  hazards  of  the  employment,  or 
defect  in  appliances  or  place  of  work,  if  he 
knew,  or  could  have  known,  of  them  by  the 
exercise  of  ordinary  care,  or  they  were  not 
know  or  could  not  have  been  discovered  by 
the  employer  by  the  exercise  of  such  care, 
nor   in   the   event   that  his   own   negligence 
contributed   to   the   injury,   violates   a   con- 
stitutional  provision   that   the   general    as- 
sembly  shall   have   no   power   to    limit   the 
amount  of  recovery  for  injury. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  party  plaintiff  —  distribution 

of  funds. 

3.  A  provision  of  a  workmen's  compensa- 
tion act  limiting  the  distribution   of  a  re- 
covery   for    the    death    of    an    employee    to 
those  dependent  on  him,  and  providing  that, 
in  the  absence  of  descendants,  the  Compen- 
sation  Board   shall   have  the  sole  right  of 
action   for   the   death,   and   shall   cover   the 
recovery,  after  paying  medical  and  funeral 

Note.  —  As  to  application  and  effect  of 
workmen's  compensation  acts  generally,  see 
annotation,  ante,  23. 

As  to  constitutionality  of  workmen's  com- 
pensation acts,  see  annotation,  post,  409. 
L.R.A.1916A. 


expenses,   into  the  fund   for  the   benefit  of 

the   class   to   which   the   employee   belongs, 

violates    a    constitutional    provision    giving 

a   right  to  recover   for  death   in  an   action 

brought   by   the  personal   representative   of 

decedent. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —   provision   of   compensation   — 

police  power. 

4.  The  regulation  of  the  management  of 
the  industries  of  the  state  so  as  to  provide 
compensation  for  injured  employees  is  with- 
in the  police  power. 

For  other  cases,  see  Constitutional  Law,  II. 
c,  4,  c,  in  Dig.  1-52  N.  8. 

On  Petition  for  Rehearing. 

Same  —  compulsion  upon  employer  — 
constitutionality. 

5.  No  constitutional  right  of  an  employer 
is  infringed  by  requiring  him  to  accept  the 
provisions  of  a  workmen's  compensation  act 
under  which  he  must  contribute  to  a  fund 
for  the  reimbursement  of  injured  employees 
under  penalty  of  being  deprived  of  the  de- 
fenses of  fellow  service,  assumption  of  risk, 
and  contributory  negligence. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8. 

(Hobson,  Ch.  J.,  and  Miller  and  Lassing, 
JJ.,  dissent.) 

(December  11,  1914.) 

A  PPEAL  by  defendant  from  a  judgment 
1\  of  the  Circuit  Court  for  Franklin  Coun- 
ty overruling  a  demurrer  to  a  petition  filed 
to  compel  defendant  to  fill  out  and  sur- 
render certain  blanks  furnished  by  the 
Workmen's  Compensation  Board  to  it  for 
the  purpose  of  bringing  it  under  the  pro- 
visions of  the  compensation  act.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Charles  Carroll  and  Pratt 
Dale,  for  appellant: 

The  act  is  in  violation  of  §§  54  and  241 
of  the  Kentucky  Constitution. 

Union  Cent.  L.  Ins.  Co.  v.  Spinks,  119  Ky 
261,  69  L.R.A.  264,  83  S.  W.  615,  84  S.  W. 
1160,  7  Ann.  Cas.  913;  Continental  Casualty 
Co.  v.  Harrod,  30  Ky.  L.  Rep.  1117,  100  S. 


390 


WORKMEN'S  COMPENSATION. 


W.  262;  Clarey  v.  Union  Cent.  L.  Ins.  Co. 
143  Ky.  542,  33  L.R.A.(N.S.)  881,  136  S. 
W.  1014;  Travelers'  Ins.  Co.  v.  Henderson 
Cotton  Mills,  120  Ky.  218,  117  Am.  St.  Rep. 
585,  85  S.  W.  1090,  9  Ann.  Gas.  162 ;  Louis- 
ville R.  Co.  v.  Raymond  ( Louisville  -R.  Co. 
v.  Taylor)  135  Ky.  738,  27  L.R.A.(N.S.) 
176,  123  S.  W.  281. 

The  act  is  compulsory. 

Borgnis  v.  Falk  Co.  147  Wis.  327,  37 
L.R.A.(N.S.)  489,  133  N.  W.  209,  3  N.  C. 
C.  A.  649;  Ohio  Workmen's  Ins.  Act,  §  21-2; 
State  ex  rel.  Yaple  v.  Creamer,  85  Ohio  St. 
349,  39  L.R.A.(N.S.)  694,  97  N.  E.  602; 
Ives  v.  South  Buffalo  R.  Co.  201  N.  Y.  271, 
34  L.R.A.(N.S.)  162,  94  N.  E.  431,  Ann.  Cas. 
1912B,  156,  1  N.  C.  C.  A.  517. 

The  act  confers  upon  the  Workmen's 
Compensation  Board  judicial  powers,  con- 
trary to  §§  109  and  135  of  the  Constitution. 

Pratt  v.  Breckinridge,  112  Ky.  1,  65  S. 
W.  136,  66  S.  W.  405;  Com.  v.  Jones,  10 
Bush,  725;  Burkett  v.  McCarty,  10  Bush, 
758;  State  ex  rel.  Miller  v.  Taylor,  27  N.  D. 
77,  145  N.  W.  425;  Fitch  v.  Manitou  Coun- 
ty, 133  Mich.  178,  94  N.  W.  952;  Shell  v. 
Asher,  31  Ky.  L.  Rep.  566,  102  S.  W.  879; 
Lawson,  Contr.  2d  ed.  §  316,  pp.  363-365. 

Messrs.  Brown  &  Nuckols,  also  for  ap- 
pellant : 

The  act  is  not  a  valid  exercise  of  the 
police  power  of  the  state. 

Ives  v.  South  Buffalo  R.  Co.  201  N.  Y. 
271,  34  L.R.A.  (N.S.)  162,  94  N.  E.  431,  Ann. 
Cas.  1912B,  156,  1  N.  C.  C.  A.  517. 

It  takes  away  all  right  of  action  for  death 
resulting  from  negligence  or  wrongful  act. 

Louisville  R.  Co.  v.  Raymond  (Louisville 
R.  Co.  v.  Taylor)  135  Ky.  738,  27  L.R.A. 
(N.S.)  176,  123  S.  W.  281;  Sturges  v. 
Sturges,  126  Ky.  80,  12  L.R.A. (N.S.)  1014, 
102  S.  W.  884. 

Mr.  Elmer  C.  Underwood,  amicus 
ourisp : 

The  act  being  unconstitutional  in  its  es- 
sential features,  the  entire  act  is  therefore 
invalid. 

Illinois  C.  R.  Co.  v.  Com.  154  Ky.  332, 
157  S.  W.  687. 

The  act  is  compulsory  in  that  employers 
who  do  not  accept  it  are  deprived  of  the 
defenses  of  fellow  servant,  assumed  risk, 
and  contributory  negligence,  and  the  em- 
ployee who  does  not  accept  it  can  recover 
in  the  single  instance  where  the  injury  is 
caused  by  the  master's  direct  negligence. 

1  Boyd,  Workmen's  Compensation,  §  169 ; 
Doe  ex  dem.  Gaines  v.  Buford,  1  Dana,  481. 

The  contract  provided  for  in  the  act, 
being  repugnant  to  §§  54  and  241  of  the 
Constitution,  will  not  be  enforced  by  the 
courts. 

Pratt  v.  Breckinridge,  112  Ky.  16,  65  S. 
W.  136,  66  S.  W.  405;  Hudnall  v.  Watts 
L.R.A.1916A. 


Steel  &  I.  Syndicate,  20  Ky.  L.  Rep.  1211, 
49  S.  W.  21;  Kentucky  Coal  Min.  Co.  v. 
Mattingly,  133  Ky.  526,  118  S.  W.  350. 

The  legislature  cannot  penalize  the  en- 
joyment of  constitutional  rights. 

Byers  v.  Meridian  Printing  Co.  84  Ohio 
St.  408,  38  L.R.A.(N.S.)  913,  95  N.  E.  917; 
McGee  v.  Baumgartner,  121  Mich.  287,  80 
N.  W.  21;  Park  v.  Detroit  Free  Press  Co. 
72  Mich.  560,  1  L.R.A.  599,  16  Am.  St.  Rep. 
544,  40  N.  W.  731. 

In  order  to  benefit  employees  injured  by 
their  own  negligence,  or  employers  sustain- 
ing a  loss  as  the  result  of  their  own  negli- 
gence, the  legislature  cannot  take  from  the 
careful  employee  or  the  careful  employer. 

Scuffletown  Fence  Co.  v.  McAllister,  12 
Bush,  312;  Hancock  Stock  &  Fence  Law 
Co.  v.  Adams,  87  Ky.  417,  9  S.  W.  246;  Fitz- 
patrick  v.  Warden,  157  Ky.  95,  162  S.  W. 
550;  Chesapeake  Stone  Co.  v.  Moreland,  126 
Ky.  667,  16  L.R.A. (N.S.)  479,  104  S.  W. 
762. 

The  legislature  cannot  abolish  §  241  of  the 
Constitution  by  saying  that  no  act  is  a 
"negligent"  act  or  a  "wrongful"  act  unless 
done  by  the  master  himself. 

Howard  v.  Hunter,  126  Ky.  685,  104  S.  W. 
723 ;  Linck  v.  Louisville  &  N.  R.  Co.  107  Ky. 
370,  54  S.  W.  184;  Passamaneck  v.  Louis- 
ville R.  Co.  98  Ky.  195,  32  S.  W.  620,  11  Am. 
Neg.  Cas.  612;  East  Tennessee  Teleph.  Co. 
v.  Simm,  99  Ky.  404,  36  S.  W.  171. 

The  defenses  of  fellow  servant  and  con- 
tributory negligence  have  been  construed  to 
be  appurtenant  to  Kentucky  Constitution,  § 
241. 

Passamaneck  v.  Louisville  R.  Co.  98  Ky. 
195,  32  S.  W.  620,  11  Am.  Neg.  Cas.  612; 
Clark  v.  Louisville  &  N.  R.  Co.  101  Ky.  34, 
36  L.R.A.  123,  39  S.  W.  840,  2  Am.  Neg. 
Rep.  360;  Toner  v.  South  Covington  &  C. 
Street  R.  Co.  109  Ky.  41,  58  S.  W.  439; 
Smith  v.  National  Coal  &  I.  Co.  135  Ky. 
671,  117  S.  W.  280;  Cincinnati,  N.  0.  &  T. 
P.  R.  Co.  v.  Lovell,  141  Ky.  249,  47  L.R.A. 
(N.S.)  909,  132  S.  W.  569;  Louisville  R.  Co. 
v.  Raymond  (Louisville  R.  Co.  v.  Taylor) 
135  Ky.  738,  27  L.R.A. (N.S.)  176,  123  S. 
W.  281 ;  Linck  v.  Louisville  &  N.  R.  Co.  107 
Ky.  370,  54  S.  W.  184. 

Under  §  241  of  the  Constitution,  con- 
tributory negligence  cannot  defeat  a  re- 
covery unless  it  be  such  that,  but  for  it,  the 
death  would  not  have  occurred. 

Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Lovell, 
141  Ky.  249,  47  L.R.A. (N.S.)  909,  123  S.  W. 
569. 

There  can  be  no  liability  without  fault. 

Ives  v.  South  Buffalo  R.  Co.  201  N.  Y.  271, 
34  L.R.A.  (N.S.)  162,  94  N.  E.  431,  Ann. 
Cas.  1912B,  156,  1  N.  C.  C.  A.  517;  Camp- 
bellsville  v.  Odewalt,  24  Ky.  L.  Rep.  1739, 
60  L.R.A.  723,  72  S.  W.  314. 


KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BD.     391 


The  act  violates  §  60  of  the  Kentucky 
Constitution  in  that  it  creates  a  system  of 
jurisprudence  taking  effect  upon  an  au- 
thority other  than  the  general  assembly. 

Western  &  S.  L.  Ins.  Co.  v.  Com.  133  Ky. 
292,  117  S.  W.  376;  Columbia  Trust  Co.  v. 
Lincoln  Institute,  138  Ky.  804,  29  L.R.A. 
(N.S.)  53,  129  S.  W.  113. 

The  act  violates  the  14th  Amendment  in 
that  it  denies  due  process  of  law  to  both 
employer  and  employee,  and  in  that  it  gives 
the  same  protection  to  the  careless  employer 
and  the  careless  employee  that  it  gives  to 
the  careful  employer  and  the  careful  em- 
ployee. 

Ives  v.  South  Buffalo  R.  Co.  201  N.  Y. 
271,  34  L.R.A.(N.S.)  162,  94  N.  E.  431,  Ann. 
Cas.  1912B,  156,  1  N.  C.  C.  A.  517;  Camp- 
bellsville  v.  Odewalt,  24  Ky.  L.  Rep.  1739, 
60  L.R.A.  723,  72  S.  W.  314. 

Messrs.  James  Garnett,  Attorney  Gen- 
eral, and  Robert  T.  Caldwell,  Assistant 
Attorney  General,  for  appellee: 

The  title  of  the  compensation  act  is  suf- 
ficient. 

Thompson  v.  Com.  159  Ky.  8,  166  S.  W. 
023. 

The  legislature  has  not  limited  re- 
coveries. 

Murphy  v.  Com.  1  Met.  (Ky.)  365;  Taylor 
v.  Com.  9  Ky.  L.  Rep.  316;  Pierce  v.  Somer- 
set R.  Co.  171  U.  S.  641,  43  L.  ed.  316,  19 
Sup.  Ct.  Rep.  64;  Borgnis  v.  Falk  Co.  147 
Wis.  327,  37  L.R.A. (N.S.)  489,  133  N.  W. 
209,  3  N.  C.  C.  A.  649 ;  Opinion  of  Justices, 
209  Mass.  607,  96  N.  E.  308,  1  N.  C.  C.  A. 
557 ;  State  ex  rel.  Yaple  v.  Creamer,  85  Ohio 
St.  349,  39  L.R.A.(N.S.)  694,  97  N.  E.  602; 
Sexton  v.  Newark  Dist.  Teleg.  Co.  84  N.  J. 
L.  85,  86  Atl.  451,  3  N.  C.  C.  A.  569 ;  Deibei- 
kis  v.  Link-Belt  Co.  261  111.  465,  104  N.  E. 
211,  Ann.  Cas.  1915A,  241,  5  N.  C.  C.  A.  401; 
Mathison  v.  Minneapolis  Street  R.  Co.  126 
Minn.  286,  L.R.A.—,  — ,  148  N.  W.  71,  5  N. 
C.  C.  A.  871;  Hawkins  v.  Bleakley,  220 
Fed.  378. 

Mr.  Otto  Wolff,  also  for  appellee: 

Section  7  of  the  Constitution  is  not 
violated. 

M'Cord  v.  Johnson,  4  Bibb,  531;  Ewing  v. 
Directors  of  Penitentiary,  Hardin  (Ky.)  6; 
Wells  v.  Caldwell,  1  A.  K.  Marsh.  441; 
Harrison  v.  Chiles,  3  Litt.  195;  Harris  v 
Wood,  6  T.  B.  Mon.  641 ;  Murry  v.  Askew, 
6  J.  J.  Marsh.  27;  Wills  v.  Lochnane,  -9 
Bush,  547. 

The  act  is  an  exercise  of  the  police  power. 

Silva  v.  Newport,  150  Ky.  781,  42  L.R.A. 
(N.S.)  1060,  150  S.  W.  1024,  Ann.  Cas. 
1914D,  613. 

The  act  does  not  affect  the  right  to  sue 
and  recover  for  wrongful  act,  and  the  defi- 
nition  of  actionable  negligence  is  variable  ' 
by  the  legislature  and  the    courts,    and    is  I 
LR.A.1916A. 


different  in  state  and  Federal  courts  sitting 
in  the  same  territory. 

Baltimore  &  0.  R.  Co.  v.  Baugh,  149  U.  S. 
387,  37  L.  ed.  781,  13  Sup.  Ct.  Rep.  914. 

The  action  of  the  Board  is  under  the 
supervision  of  the  courts. 

Board  of  Prison  Comrs.  v.  De  Moss,  157 
Ky.  289,  163  S.  W.  183;  Wilson  v.  Com. 
341  Ky.  341,  132  S.  W.  557. 

Dorsey,  Special  Judge,  delivered  the 
opinion  of  the  court: 

This  case  was  brought  to  this  court  by  ap- 
peal from  a  judgment  of  the  Franklin 
circuit  court  to  test  the  constitutionality  of 
an  act  generally  known  as  the  workmen's 
compensation  act,  passed  by  the  legislature 
and  approved  by  the  governor,  March  21, 
1914  (Laws  1914,  chap.  73).  By  the  pro- 
visions of  this  act,  a  board  of  commissioners 
is  created,  composed  of  the  attorney  general, 
the  commissioner  of  insurance,  and  the  com- 
missioner of  agriculture,  labor,  and  statis- 
tics, and  to  be  known  as  the  "Workmen's 
Compensation  Board."  This  act  creates  a 
workmen's  compensation  fund,  which  is 
maintained  by  the  various  classes  of  employ- 
ers mentioned  in  the  act,  and  such  other 
employers  who,  together  with  their  employ- 
ees, shall  apply  for  the  benefits  and  protec- 
tion of  the  act.  This  fund  is  created  by 
fixing  a  rate  or  premium,  during  the  first 
year,  of  not  to  exceed  $1.25  on  each  $100 
of  the  gross  annual  pay  roll  of  each  em- 
ployer in  any  class  of  employers  coming 
within  the  purview  of  the  act.  The  Com- 
pensation Board  has  charge  of  this  fund, 
and  may  increase  the  rate  if  deemed  nec- 
essary. All  persons,  firms,  and  corporations 
regularly  employing  six  or  more  persons 
for  profit  for  the  purpose  of  carrying 
on  the  class  of  business  designated  in  the 
act  in  which  such  person,  firm,  or  cor- 
poration is  engaged  are  employers.  And 
persons  in  the  service  of  such  employers,  for 
the  purpose  of  carrying  on  such  class  of 
business,  are  employees  within  the  meaning 
of  the  act.  It  is  made  the  duty  of  such  em- 
ployers to  report  to  the  Board  the  place  of 
their  business,  the  number  of  their  em- 
ployees, the  amount  of  their  pay  roll,  and 
such  other  information  desired  by  the  Board, 
by  filling  out  blanks  furnished  by  the  Board, 
and  returning  the  same  to  the  Board.  These 
blankets  were  furnished  by  the  Board  to  the 
appellant,  the  State  Journal  Company,  who 
was  the  defendant  in  the  court  below.  But 
the  appellant  refused  to  fill  out  or  return 
said  blanks,  and  further  refused  to  furnish 
the  Board  with  any  information  touching 
the  place  of  its  business,  the  amount  of  its 
pay  roll,  the  number  of  men  in  its  service,  or 
anything  else.  Whereupon  the  appellee 
brought  this  suit  in  the  form  of  a  man- 


392 


WORKMEN'S  COMPENSATION. 


datory  injunction  to  compel  the  appellant 
to  fill  out  and  return  the  blanks  containing 
such  information  as  was  therein  mentioned. 
The  appellant  (defendant)  demurred  to  this 
petition.  This  demurrer  involves  the 
constitutionality  of  the  act.  The  court  be- 
low entered  a  judgment  overruling  the  de- 
murrer, and  directed  appellant  to  file  and 
make  the  report  required,  from  which  the 
appellant  appealed. 

This  act  is  of  too  great  length  to  be  em- 
braced in  this  opinion.  But  the  storm  cen- 
ter of  the  fight  gathers  around  §§  29,  30, 
31,  32,  and  34,  which  sections  read  as  fol- 
lows: 

"Section  29.  It  shall  be  lawful  for  any 
employee  subject  to  this  act,  including  per- 
sons under  twenty-one  years  of  age  to  con- 
tract with  any  employer  subject  to  this  act 
who  elects  to  pay  the  premiums  herein  pro- 
vided to  be  paid  into  said  workmen's  com- 
pensation fund,  to  accept  the  compensation 
provided  to  be  paid  to  injured  employees  and 
the  dependents  of  those  killed,  and  to  ac- 
cept the  benefits  conferred  on  employees  by 
this  act,  in  lieu  of  any  cause  of  action  which 
he  might  have,  if  injured,  or  that  his  repre- 
sentative might  have  if  he  was  thereafter 
killed  through  the  negligence  of  his  agents, 
servants,  officers  or  employees,  and  to  waive 
all  causes  of  action  against  such  employer 
conferred  by  the  Constitution  or  statutes  of 
this  state  or  by  the  common  law  for  his  in- 
jury or  death,  occurring  through  the  negli- 
gence of  the  employer  or  his  agents  and  such 
contract  shall  be  binding  upon  the  employer 
and  upon  the  employee  and  upon  his  heirs, 
personal  representatives,  and  all  persons 
claiming  under  or  through  him. 

"Section  30.  Such  a  contract  between  an 
employee  and  his  employer  shall  be  con- 
clusively presumed  to  have  been  made  in 
every  case  where  an  employer  has  elected 
to  pay  into  the  workmen's  compensation 
fund,  if  said  employee  shall  continue  to 
work  for  said  employer  thereafter,  with 
notice  that  the  employer  has  elected  to  pay 
into  said  fund  and  the  posting  of  printed 
or  typewritten  notices  in  conspicuous  places 
about  the  employer's  place  of  business  at 
the  time  of  the  elections  of  such  employer 
to  pay  into  the  workmen's  compensation 
fund  that  he  has  elected  to  pay  into  said 
workmen's  compensation  fund  shall  consti- 
tute sufficient  notice  to  all  such  employers' 
employees  then  or  thereafter  employed  of 
the  fact  that  he  has  made  such  an  election, 
and  the  continuance  in  the  service  of  such 
employers  shall  be  deemed  a  waiver  of  the 
employee  of  his  rights  of  action,  as  afore- 
said. Except  as  provided  in  §  32. 

"Section  31.  Any  employer  subject  to  this 
act,  electing  to  pay  into  the  workmen's  com- 
pensation fund,  the  premiums  provided  for 
L.R.A.1916A. 


by  this  act,  shall  not  be  liable  to  respond  in 
damages  at  common  law  or  by  statute  for 
the  injury  or  death  or  loss  of  service  of  any 
employee  occurring  through  the  negligence 
of  such  employer,  or  his  agent,  servants,  of- 
ficers or  employees,  during  any  period  of 
time  in  which  such  employer  shall  not  be 
in  default  in  the  payment  of  such  premiums. 
Provided,  that  the  injured  employee  has  re- 
mained in  his  service  after  notice  is  posted 
as  provided  in  §  30,  that  his  employer  has 
elected  to  pay  into  the  workmen's  compensa- 
tion fund  the  premiums  provided  by  this 
act.  The  continuance  in  the  service  of  such 
employer  or  accepting  service  after  such 
notice  shall  have  been  posted,  shall  be 
deemed  a  waiver  by  the  employee  of  his 
rights  of  action,  as  aforesaid.  Except  as  in 
§  32. 

"Sec.  32.  Any  employee  prior  to  receiv- 
ing an  injury  may  give  notice  to  an  em- 
ployer who  has  elected  to  pay  into  said  fund, 
that  he  will  not  accept  the  benefits  of  this 
act  and  waive  his  right  of  action  as  herein 
provided.  Such  notice  shall  be  in  writing 
and  served  on  the  employer  as  provided  by 
the  Civil  Code  for  the  service  of  notices,  and 
a  copy  thereof  shall  be  mailed  by  the  em- 
ployee to  the  Workmen's  Compensation 
Board.  If  thereafter  such  employee  shall  be 
injured  or  killed  while  employed  by  such 
employer  who  has  elected  to  pay  into  the 
said  workmen's  compensation  fund,  and  an 
action  shall  be  instituted  against  such  em- 
ployer to  recover  damages  for  the  injury  or 
death  of  such  employee,  it  shall  be  suf- 
ficient defense  thereto  and  shall  bar  re- 
covery if  the  injury  of  said  employee  was 
caused  by  or  contributed  to  by  the  negli- 
gence of  any  other  employee  of  said  em- 
ployer, or  if  the  injury  was  due  to  any  of 
the  ordinary  hazards,  or  risks  of  employ- 
ment, or  if  due  to  any  defect  in  the  tools, 
machinery,  appliances,  instrumentality  or 
place  of  work,  if  the  defect  was  known  or 
could  have  been  discovered  by  the  injured 
employee  by  the  exercise  of  ordinary  care 
on  his  part,  or  was  not  known  or  could  not 
have  been  discovered  by  the  employer  by 
the  exercise  of  ordinary  care  in  time  to 
have  prevented  the  injury  nor  in  any  event, 
if  the  negligence  of  the  injured  employee 
contributed  to  such  injuries.  But  nothing 
herein  shall  deprive  such  employer  of  any 
defense  not  herein  mentioned.  If  the  em- 
ployer is  not  in  default  in  payment  of 
premiums  and  a  recovery  shall  be  obtained 
against  him  in  such  action,  the  said  Board 
shall  pay  on  said  judgment  not  exceeding  a 
sum  equal  to  the  amount  which  the  said 
injured  employee  or  his  dependents  in  case 
of  death,  would  have  been  entitled  to  re- 
cover if  he  had  elected  to  accept  the  benefit 
of  this  act,  and  the  employer  shall  receive 


KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BD.     393 


credit  on  said  payment  for  the  payment 
made  by  the  Board.  Such  employee,  at  any 
time,  after  he  has  elected  not  to  accept  the 
benefits  of  this  act  and  waive  his  right  of 
action,  as  in  this  act  provided,  may  with- 
draw such  election  and  come  under  the  pro- 
visions of  this  act  and  accept  its  benefits 
and  waive  his  right  of  action  as  herein  pro- 
vided by  giving  written  notice  to  his  em- 
ployer and  to  the  board;  and  shall  there- 
after occupy  the  same  position  as  if  he 
had  originally  elected  to  accept  the  benefis 
of  this  act  and  waive  his  cause  of  action,  pro- 
vided, that  such  withdrawal  of  his  election 
not  to  accept  the  benefits  of  this  act  shall 
not  affect  the  claims  for  damages  against  his 
employer  on  account  of  injuries  theretofore 
received;  nor  entitles  such  injured  em- 
ployee to  be  paid  anything  out  of  the  work- 
men's compensation  fund  on  account  of  such 
prior  injury." 

"Section  34.  All  employers  subject  to  this 
act  who  shall  elect  not  to  pay  into  the  work- 
men's compensation  fund  the  premiums  pro- 
vided by  this  act,  or  having  elected  to  pay 
shall  be  in  default  in  the  payment  of  same 
shall  be  liable  to  their  employees  within  the 
meaning  of  this  act,  for  the  damages  by 
reason  of  personal  injuries  sustained  in  the 
course  of  employment  caused  by  the  wrong- 
ful act,  neglect  or  default  of  the  employer, 
or  any  of  the  employer's  officers,  agents  or 
employers,  and  also  to  the  personal  repre- 
sentatives of  such  employee  and  in  any  ac- 
tion by  any  such  employee  or  personal  rep- 
resentative thereof,  such  defendant  shall  not 
avail  himself  of  the  following  defenses: 
The  defense  of  the  fellow  servant;  the  de- 
fense of  the  assumption  of  risk,  or  the 
defense  of  contributory  negligence." 

Appellant's  contention  is  that  this  act  is 
invalid;  and  while  counsel  for  appellant 
base  their  reasons  for  reversal  on  many 
grounds,  this  court  will  content  itself  with 
an  examination  and  inquiry  into  the  follow- 
ing three  grounds: 

(1)  It  is  claimed  that  the  act  is  violative 
of  §  54  of  the  Constitution,  which  provides: 
"The  general  assembly  shall  have  no  power 
to  limit  the  amount  to  be  recovered  for  in- 
juries resulting  in  death,  or  for  injuries  to 
person  or  property." 

(2)  The  act  is  compulsory  in    that   both 
the  employers  and  employees  are  compelled 
to  accept  its  provisions,    and,    being    com- 
pulsory, it  deprives  appellant  of  its  prop- 
erty without  due  process  of   law,  and  vio- 
lates §  54  of  the  Constitution. 

(3)  The  act  is  in  contravention  of  §  241 
of  the  Constitution,  which  reads  as  follows: 
"Whenever  the  death  of  a  person  shall  re- 
sult from  an  injury  inflicted  by  negligence 
or  wrongful  act,  then,  in  every    such    case, 
damages  may  be  recovered  for  such  death, 
L.R.A.1916A. 


from  the  corporations  and  persons  so  caus- 
ing the  same,"  etc. 

It  is  provided  in  §  29  above  that  it  shall 
be  lawful  for  any  employee  ( including 
persons  under  twenty-one  years  of  age)  to 
contract  with  any  employer  who  has  paid 
his  premium  into  the  fund,  to  accept  the 
compensation  provided  in  this  act  to  be  paid 
to  persons  injured  and  the  dependents  of 
those  killed,  and  to  accept  the  benefits  given 
employees  by  this  act,  in  lieu  of  any  cause 
of  action  which  he  might  have,  if  injured,  or 
that  his  representative  might  have  if  killed, 
and  also  to  waive  any  cause  of  action  he 
may  have  against  his  employer  for  injury  or 
deatli  occurring  through  the  negligence  of 
his  employer  or  agent,  and  such  contract 
shall  be  binding  on  the  employer  and  em- 
ployee and  upon  his  heirs  and  representa- 
tives. Under  this  section  the  compensation 
of  the  injured  man  is  limited  to  the  amount 
specified  in  the  schedule  of  the  act.  This 
constitutes  a  limitation  upon  the  amount  of 
his  recovery  under  §  54  of  the  Constitution, 
providing  that  the  legislature  "shall  have 
no  power  to  limit  the  amount  to  be  recovered 
for  injuries  resulting  in  death,  or  for  in- 
juries to  persons  or  property."  But  we 
think  it  is  within  the  power  and  right  of  an 
employee  to  waive  this  limit  of  recovery  for 
injury,  by  contract,  if  such  contract  is  free- 
ly and  voluntarily  made. 

There  may  never  have  been  a  word  or  a 
syllable  between  the  employer  and  the  em- 
ployee in  regard  to  a  contract  for  employ- 
ment to  labor,  yet  the  act  provides  that  such 
contract  shall  be  conclusively  presumed  to 
have  been  made  between  the  employer  and 
employee,  if  the  employee  continues  to  work 
for  the  employer  after  the  employer  has 
posted  notices  in  some  conspicuous  places 
about  his  place  of  business,  to  the  effect  that 
he  has  paid  his  premiums  into  the  fund  and 
accepted  the  provisions  of  the  act. 

We  will  go  a  little  further  and  examine 
the  provisions  of  §  32  of  this  act.  Suppose 
the  employee,  desiring  to  rely  upon  the 
causes  of  action  given  him  by  the  Constitu- 
tion and  laws  of  this  state,  does  not  accept 
the  so-called  benefits  of  this  act;  then  in 
that  event,  under  §  32  of  this  act,  the  em- 
ployee, prior  to  receiving  an  injury,  is  com- 
pelled to  give  notice  to  his  employer  and 
to  the  Board  that  he  will  not  accept  the 
provisions  of  this  act.  This  notice  must  be 
served  as  provided  by  the  Civil  Code  for 
serving  notices.  So  if,  after  this  notice  has 
been  served,  the  employee  should  be  injured 
or  killed  while  in  the  service  of  the  em- 
ployer, he  or  his  personal  representative 
may  sue  his  employer  to  recover  damages; 
then  his  right  to  recover  is  barred  by  the 
provisions  of  this  act,  if  his  injury  was 
caused  by  or  contributed  to  by  the  negli- 


394 


WORKMEN'S  COMPENSATION. 


gence  of  any  other  employee  of  said  employ- 
er, or  if  the  injury  was  due  to  any  of  the 
ordinary  hazards  or  risks  of  the  employ- 
ment, or  if  due  to  any  defect  in  the  tools, 
machinery,  appliances,  instrumentality,  or 
place  of  work,  if  the  defect  was  known  or 
could  have  been  discovered  by  the  injured 
employee  by  the  exercise  of  ordinary  care  on 
his  part,  or  was  not  known  or  could  not 
have  been  discovered  by  the  employer  by  the 
exercise  of  ordinary  care  in  time  to  have 
prevented  the  injury,  nor  in  any  event  if  the 
negligence  of  the  injured  employee  con- 
tributed to  such  injuries.  Now,  when  his 
right  to  recover  is  restricted  by  such  quali- 
fications and  conditions  as  these,  we  think 
these  qualifications  and  conditions  consti- 
tute, within  the  meaning  of  §  54  of  the  Con- 
stitution, not  only  a  limitation  upon  the 
amount  to  be  recovered,  but  practically  de- 
stroy his  right  to  recovery.  When  an  in- 
jured employee  elects  to  decline  the  compen- 
sation given  him  by  this  Board,  why  should 
he  be  denied  these  causes  of  action — why 
penalized  in  this  way?  To  this  there  is  but 
one  answer,  and  that  is:  It  was  the  pur- 
pose and  intent  of  this  act  to  compel  an  em- 
ployee to  accept  its  provision  and  take  the 
compensation  allowed  by  the  Board  in  lieu 
of  any  cause  of  action  he  might  have  against 
his  employer  for  his  injuries.  When  the  em- 
ployer accepts  the  provisions  of  this  act, 
the  employee  is  automatically  drawn  into 
this  so-called  contract  and  made  subject  to 
its  provisions  upon  pain  of  being  deprived 
of  all  his  causes  of  action.  It  cannot,  then, 
be  said  that  he  has  voluntarily  elected  to 
accept  the  provisions  of  the  contract,  be- 
cause he  is  told  that  unless  he  accepts  the 
provisions  of  this  act  he  will  be  deprived  of 
all  these  causes  of  action.  This  certainly 
imposes  a  limitation  upon  his  right  to  re- 
cover within  the  meaning  of  §  54  of  the 
Constitution.  His  election  should  be  free, 
not  even  in  the  alternative.  The  law  has 
no  right  to  force  him  to  accept  the  compen- 
sation fixed  by  this  Board  by  depriving  him 
of  his  causes  of  action.  The  only  remedy 
left  to  him  is  to  accept  what  he  can  get 
from  this  Compensation  Board-.  The  action 
of  the  employer  in  paying  into  this  fund  his 
premiums  and  accepting  the  benefits  of  this 
act  necessarily  brings  the  employee  within 
the  act.  The  employee  can  go  nowhere  else ; 
he  has  been  legislated  out  of  his  causes  of 
action,  and  all  he  can  do  is  to  accept  such 
amount  as  is  allowed  him  by  this  Board  of 
Compensation.  The  legislature  has  no 
right  to  say  to  one  of  its  citizens  that  "un- 
less you  accept  the  provisions  of  a  law  im- 
pairing your  constitutional  rights,  it  will 
take  from  you  other  rights  more  valuable." 
In  the  light  of  §  54  of  the  Constitution, 
we  must  treat  the  contract  made  by  the  em- 
L.R.A.1916A. 


ployee  under  the  provision  of  this  act  as 
compulsory,  and  therefore  void. 

If  any  employer  should  determine  that 
he  wanted  to  carry  his  own  risk  and  make 
his  own  contracts,  instead  of  having  the  law 
to  make  a  contract  for  him,  he  can  do  so. 
He  can  operate  his  industries  and  pursue 
his  business,  however  hazardous,  and  ignore 
this  act  entirely.  But  what  is  the  result? 
The  law  says  to  this  employer:  "You  may 
go  on  with  your  business  industries,  but  if 
one  of  your  employees  is  injured  or  killed  you 
shall  not  avail  yourself  of  the  following  de- 
fenses: The  defense  of  the  fellow  servant; 
the  defense  of  the  assumption  of  risk;  or 
the  defense  of  contributory  negligence." 

These  are  practically  all  the  defenses  the 
employer  has,  and  they  are  taken  from  him 
unless  he  accepts  the  provisions  of  this  act. 
He  cannot,  under  these  conditions,  success- 
fully defend  any  suit  for  personal  injury. 
If  he  is  sued  by  an  injured  employee,  about 
the  only  question  a  jury  will  have  to  de- 
termine will  be  the  amount  of  recovery. 
Under  these  conditions  an  employer  has 
practically  no  choice,  no  volition.  If  he  con- 
tinues to  operate  hia  business,  he  is  com- 
pelled to  pay  his  premiums  into  the  fund 
and  accept  the  provisions  of  the  act. 

It  has  been  well  said  in  one  of  the  briefs: 
The  employer  is  told :  "You  may  refuse  to 
accept  the  provisions  of  this  act,  but  if  any 
suit  is  instituted  against  you  for  injuries 
received  by  your  employees,  you  are  de- 
prived of  all  defenses  thereto,  and  to  all  in- 
tents and  purposes  a  default  judgment  will 
be  rendered  against  you." 

We  cannot  subscribe  to  the  proposition, 
that  this  is  a  voluntary  contract,  even  on 
the  part  of  the  employer. 

The  act  under  consideration  is  further 
vigorously  assailed  because,  as  contended  by 
appellant's  counsel,  it  contravenes  §  241  of 
the  Constitution  of  the  state  of  Kentucky. 
Section  24]  reads  as  follows:  "Whenever 
the  death  of  a  person  shall  result  from  an 
injury  inflicted  by  negligence  or  wrongful 
act,  then,  in  every  such  case,  damages  may 
be  recovered  for  such  death,  from  the  corpo- 
rations and  person  so  causing  same.  Until 
otherwise  provided  by  law,  the  action  to 
recover  such  damages  shall  in  all  cases  be 
prosecuted  by  the  personal  representative  of 
the  deceased  person.  The  general  assembly 
may  provide  how  the  recovery  shall  go  and 
to  whom  belong;  and  until  such  provision 
is  made  the  same  shall  form  part  of  the 
personal  estate  of  the  deceased  person." 

If  an  injury  to  an  employee  should  result 
in  his  death,  his  personal  representative  is 
authorized  to  recover  damages  from  the 
negligent  person  or  corporation  causing  his 
death.  This  is  an  absolute  right  given  by 
this  section  of  the  Constitution  to  his 


KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BD.     395 


personal  representative  to  recover  damages  ( 
for  such  negligence  as  has  resulted  in  his 
death.  And  it  is  immaterial,  under  this 
section  of  the  Constitution,  whether  the 
money  recovered  goes  to  the  children  or 
parents,  or  becomes  a  part  of  his  personal 
estate.  The  disposion  of  the  money  after 
his  death  cannot  affect  the  right  of  the 
personal  representative  to  recover.  It  may 
go  to  his  heirs,  or  it  may  become  a  part 
of  his  personal  estate  and  go  to  his  cred- 
itors. 

By  §  42  (and  subsections  thereunder)  of 
this  act,  the  wife  and  children  under  six- 
teen years  of  age  are  presumed  to  be  de- 
pendents of  the  deceased  employee.  But  § 
42  and  its  subsections  further  provide  that 
no  person  shall  be  considered  a  dependent 
unless  a  member  of  the  family  of  the  de- 
ceased employee,  or  bears  to  him  the  rela- 
tion of  widower  or  widow,  lineal  descend- 
ants, ancestors,  or  brother  or  sister  Sec- 
tion 42  of  this  act  also  provides  that  if  the 
deceased  employee  had  no  descendants,  the 
disbursements  from  the  compensation  fund 
shall  be  limited  to  his  nursing,  medical,  and 
funeral  expenses.  It  then  gives  to  this 
Compensation  Board  the  sole  right  of  ac- 
tion to  recover  from  the  employer  (who  has 
accepted  the  benefits  of  the  act)  for  the 
death  of  this  employee  who  had  no  depend- 
ents. 

And  §  43  of  this  act  provides  that  no  per- 
son except  sole  dependents  of  the  deceased 
employee  shall  receive  any  benefit  from  this 
fund,  and  that  if  such  employee  left  no  de- 
pendents surviving,  the  amount  that  would 
be  due  and  payable  to  his  dependents,  had 
any  survived  him,  shall  be  paid  or  credited 
to  this  compensation  fund  for  the  benefit  of 
the  class  to  which  such  employee  belonged. 

It  seems  clear  to  us  that  such  parts  of 
this  act  as  take  from  the  personal  represen- 
tative or  estate  of  a  deceased  employee  who 
left  no  dependents  surviving  him,  any  part 
of  the  compensation  due  such  representative 
or  his  estate,  and  directs  its  payment  into 
this  fund  for  the  benefit  of  other  people,  is 
a  violation  of  the  above  §  241  of  the  Con- 
stitution. The  legislature  has  no  right  to 
limit  the  damages  recovered,  for  the  death 
of  an  employee  negligently  killed,  to  his 
dependents. 

Nor  do  we  think  the  legislature  has  the 
right  to  take  what  is  due  the  estate  of  one 
man  and  give  it  to  another.  While  the 
legislature  may  say  how  the  recovery  may 
go  and  to  whom  it  shall  belong,  it  cannot 
say  this  recovery  may  be  had  from  the  em- 
ployer; then  in  the  next  breath  give  it  to 
this  fund.  It  then  necessarily  follows  that 
such  parts  of  this  act  under  consideration 
as  give  to  this  Board  of  Compensation  with- 
out the  voluntary  contract  of  the  employee 
L.R.A.1916A. 


the  right  to  recover  from  the  employer  for 
the  death  of  the  employee  leaving  no  de- 
pendents and  such  other  parts  of  the  act 
as  coerce  the  employee  to  consent  or  to  make 
a  contract  that  such  compensation  shall  be 
paid  into  this  compensation  fund,  are  un- 
authorized and  void. 

Many  states  in  the  Union  have  adopted  a 
workmen's  compensation  act.  And  these 
acts,  together  with  the  decisions  of  the  vari- 
ous courts  construing  them,  have  been  dis- 
cussed by  counsel  in  their  briefs. 

We  have  been  referred  to  the  workmen's 
compensation  act  passed  by  the  legislature 
of  the  state  of  Washington,  and  construed 
by  the  supreme  court  of  that  state  in  an 
able  and  exhaustive  opinion  found  in  the 
case  of  State  ex  rel.  Davis-Smith  Co.  v. 
Clausen,  65  Wash.'  156,  37  L.R.A.(N.S.) 
466,  117  Pac.  1101,  2  N.  C.  C.  A.  823,  3  N. 
C.  C.  A.  599.  This  Washington  act  is  strik- 
ingly similar  to  the  Kentucky  act  now  under 
consideration  before  us,  except  that,  if  a 
party  felt  himself  aggrieved,  he  was  given 
an  appeal  to  the  superior  court  of  the  coun- 
ty of  his  residence,  and  then  given  the  right 
to  call  a  jury.  This  Washington  act  was 
held  by  the  court  in  the  above  cause  not  to 
be  compulsory,  although  it  took  away  from 
the  employer  the  defenses  of  assumed  risk, 
negligence  of  a  coemployee,  and  contribu- 
tory negligence.  There  being  no  constitu- 
tional restrictions,  the  legislature  of  the 
state  of  Washinigton  had  the  power  to  en- 
act the  statute  above  referred  to  and  it  was 
upheld  by  the  state  supreme  court. 

The  legislature  of  the  state  of  Ohio  adopt- 
ed a  similar  workmen's  compensation  act. 
But  here  the  injured  employee  had  the  right 
to  have  a  jury  fix  his  compensation  within 
the  limits  and  under  the  rules  prescribed  by 
the  act.  The  supreme  court  of  Ohio  in  State 
ex  rel.  Yaple  v.  Creamer,  85  Ohio  St.  349, 
39  L.R.A.(N.S.)  694,  97  N.  E.  602,  upheld 
the  act. 

The  Wisconsin  supreme  court  in  Borgnis 
v.  Falk  Co.  147  Wis.  327,  37  L.R.A.(N.S.) 
489,  133  N.  W.  209,  3  N.  C.  C.  A.  649, 
held  that  a  provision  of  the  workmen's  com- 
pensation act  of  that  state  which  took  away 
from  the  employer  who  refused  to  accept 
the  provision  of  the  act  the  defenses  of  as- 
sumed risk  and  negligence  of  a  coemployee 
was  not  compulsory.  The  same  view  was 
held  in  the  case  of  Ives  v.  South  Buffalo  R. 
Co.  201  N.  Y.  271,  34  L.R.A.(N.S.)  162, 
94  N.  E.  431,  Ann.  Gas.  1912B,  156,  1  N.  C. 
C.  A.  517.  These  rulings  were  put  upon  the 
ground  that  these  defenses  were  not  con- 
stitutional guaranties,  but  could  be  abol- 
ished by  the  legislature.  But  the  New  York 
act  was  held  invalid  because  it  did  not  pre- 
serve to  the  employer  the  "due  process"  of 
law  guaranteed  by  the  Constitution. 


396 


WORKMEN'S  COMPENSATION. 


The  state  of  New  York  now  has  a  compen- 
sation act  similar  to  the  one  before  us,  but 
it  was  especially  authorized  by  an  amend- 
ment to  the  New  York  Constitution. 

It  will  be  observed  here  that  there  was 
no  constitutional  provision  in  the  Constitu- 
tion of  Washington,  Ohio,  Wisconsin,  or 
New  York  similar  to  §  54  of  the  Kentucky 
Constitution,  which  denied  to  the  legisla- 
ture of  the  state  of  Kentucky,  the  "power 
to  limit  the  amount  to  be  recovered  for  in- 
juries resulting  in  death,  or  for  injuries  to 
person  or  property."  The  workmen's  com- 
pensation acts  in  all  of  the  states  above 
named,  as  well  as  in  New  Jersey,  Massachu- 
setts, and  California,  differ  from  the  Ken- 
tucky act  in  that  there  is  an  appeal  granted 
to  the  state  courts,  or  a  jury  is  permitted 
to  fix  the  amount  of  compensation. 

This  is  the  first  workmen's  compensation 
act  ever  passed  by  our  legislature,  conse- 
quently we  have  no  decisions  in  this  state 
to  guide  us,  nor  do  the  compensation  acts 
of  the  other  states  furnish  us  very  much 
light,  because  the  Constitutions  of  these 
states  materially  differ  from  the  Constitu- 
tion of  Kentucky.  The  Kentucky  Constitu- 
tion has  limitations  and  restrictions  above 
referred  to  that  are  not  found  in  any  of 
these  states  which  have  adopted  compensa- 
tion statutes.  And  for  this  reason  a  lengthy 
discussion  of  other  compensation  acts  would 
be  superfluous.  This  court  is  bound  by  the 
limitations  contained  in  the  Kentucky  Con- 
stitution. 

The  counsel  for  appellant  fiercely  assail 
the  purpose  and  operation  of  this  act  for 
many  other  reasons.  They  complain  of  the 
meager  compensation  it  gives  to  the  injured 
employee;  that  it  deprives  him  of  a  jury 
trial;  that  employers  are  compelled  to  pay 
into  this  fund  $1.25  as  a  premium  on  each 
$100  pay  roll,  and  as  a  result  only  employ- 
ers doing  an  extrahazardous  business  will 
take  under  it;  that  corporations  whose  oper- 
ations are  not  extrahazardous  will  carry 
their  own  risks  by  the  aid  of  indemnity  com- 
panies, and  by  reason  of  which  this  com- 
pensation fund  is  liable  to  suffer  depletion, 
and  if  an  employee  receives  an  injury,  his 
compensation  is  doubtful.  It  is  also  claimed 
that  as  this  is  a  common  fund,  kept  up  by 
the  contributions  of  employers,  that  they 
will  grow  careless  in  selecting  their  ma- 
chinery, as  well  as  in  their  operations,  and 
that  the  lives  and  limbs  of  the  employees 
will  suffer  greater  risks  and  injuries.  A 
sufficient  answer  to  all  this  is  that  these 
are  matters  addressed  entirely  to  the  wis- 
dom of  the  legislature,  and  can  be  regulated 
as  necessities  may  require. 

The  right  of  the  state  to  regulate  the 
management  of  industries  arises  from  the 
fact  that  their  operation  may  affect  injuri- 
L.R.A.1916A. 


ously  the  health,  safety,  morals,  or  welfare 
of  persons  engaged  in  such  employments. 
And  these  come  within  the  police  power  of 
the  state, — a  power  sometimes  difficult  to 
understand  and  usually  more  difficult  to  de- 
fine. It  is  contended  for  appellee  that  the 
act  in  question  grows  out  of  the  pursuit  and 
control  of  industries,  by  reason  of  which  its 
operations  come  within  the  police  power  of 
the  state.  This  is  perhaps  true,  and  the 
legislature  has  the  right  to  create  a  Com- 
pensation Board  and  put  it  into  operation 
free  from  the  objectionable  features  of  the 
present  act. 

This  court  looks  with  great  favor  upon  a 
workmen's  compensation  act  that  would, 
deal  justly  with  the  employer  and  employee, 
— one  that  would  permit  both  to  voluntarily 
take  shelter  under  its  provisions.  And  it  is 
not  the  purpose  of  the  court  or  the  inten- 
tion of  this  opinion  to  lay  down  any 
rule  that  will  preclude  the  legislature  from 
enacting  a  compensation  act  that  will  con- 
form to  the  Constitution,  as  we  are  clearly 
of  the  opinion  that  the  legislature  may,  in 
conformity  to  the  Constitution,  adopt  an 
effective  compensation  law.  But  this  court 
cannot  consent  that  the  legislature  has  the 
power  to  put  this  compensation  act  in  oper- 
ation by  means  of  compulsory  contracts. 

Whether  the  constitutional  restrictions 
herein  above  discussed  are  wise  or  unwise, 
this  court  is  bound  to  obey  them.  It  has 
been  well  said  by  an  eminent  judge  that 
"the  Constitution  is  the  paramount  law; 
the  judge,  legislature,  and  every  citizen 
are  bound  by  it.  The  powers  of  legislation 
are  limited  by  it,  the  rights  of  the  citizen  are 
guaranteed  and  protected  by  it,  and  the 
courts  are  bound  by  their  oaths  to  enforce 
it." 

This  court  believes  the  act  in  question 
violates  the  Constitution  of  our  state,  and 
it  must  therefore  be  held  invalid. 

The  judgment  of  the  lower  court  is  re- 
versed. 

Miller,  J.,  dissenting: 

The  opinion  of  the  majority  of  the  court 
is  of  such  far-reaching  importance  that  I 
feel  justified  in  giving  the  reasons  for  my 
dissent  from  the  conclusions  there  reached, 
and  in  doing  so  I  will  be  as  brief  as  the 
necessities  of  the  case  will  permit.  The 
opinion  of  the  majority  makes  it  impossi- 
ble for  the  legislature  to  pass  any  effective 
workmen's  compensation  act,  under  our 
present  Constitution. 

The  Kentucky  workmen's  compensation 
act  was  approved  March  21,  1914:  Acta 
1914,  p.  226.  It  is  a  very  elaborate  stat- 
ute, of  75  sections,  providing  for  the  cre- 
ation of  the  compensation  fund,  and  its 
administration,  in  every  detail.  The  Com- 


KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BD.     397 


pensation  Board  created  by  that  act  insti- 
tuted this  action  for  the  purpose  of 
obtaining  a  mandatory  injunction  direct- 
ing the  defendant,  the  State  Journal  Com- 
pany, an  employer  of  labor  within  the  state, 
and  whose  business  is  enumerated  in  §  15 
of  the  act  as  subject  thereto,  to  furnish 
the  Board  certain  information  relative  to 
its  business.  The  circuit  court  sustained 
the  act,  and  the  defendant  appeals. 

Counsel  for  appellant  have  gone  at  great 
length  into  the  merits  of  the  act.  Under 
my  view  of  the  province  of  this  court's 
powers  and  duty,  the  wisdom  or  propriety 
of  the  act  is  not  before  us.  We  are  to 
pass  only  upon  the  questions  of  law, — upon 
the  constitutionality  of  the  act.  It  is  suf- 
ficient to  say  that  this  court  has  repeat- 
edly held  that  the  fairness  or  wisdom  of 
an  act  is  a  legislative  question ;  and  with- 
out citing  the  many  authorities  which  es- 
tablish so  elementary  a  proposition,  it  may 
be  sufficient  to  refer  to  the  language  of 
this  court  in  the  late  case  of  Eastern  Ken- 
tucky Coal  Lands  Corp.  v.  Com.  127  Ky. 
717,  106  S.  W.  275,  where  we  said:  "There 
are  a  number  of  other  objections  made  to 
the  statute  by  appellant,  all  of  which  may 
be  grouped  under  the  general  complaint 
that  it  is  harsh,  oppressive,  and  unjust. 
Were  these  objections  well  grounded,  they 
would  afford  no  basis  for  relief  at  the  hands 
of  the  court.  The  policy  of  the  legislature 
may  be  looked  into  by  the  courts  for  the 
purpose  only  of  interpreting  statutes.  If, 
then,  they  are  found  to  be  within  the  power 
of  the  legislature  to  enact,  the  business  of 
the  court  is  ended.  .  .  .  It  is  not  toler- 
able in  our  form  of  government,  with  its 
distinct  separation  of  powers,  that  acts  of 
the  legislative  branch  should  stand  or  fall 
according  as  they  appealed  to  the  approval 
of  the  judiciary;  else  one  branch  of  gov- 
ernment, and  that  the  most  representative 
of  the  people,  would  be  destroyed,  or  at 
least  completely  subverted  to  the  judges." 

The  courts  must  necessarily  'assume  that 
legislative  discretion  has  been  properly 
exercised.  Cooley,  Const.  Lim.  7th  ed.  p. 
257.  In  the  interpretation  of  the  statutes, 
it  is  an  elementary  rule  of  construction 
that  all  laws  enacted  by  the  legislature  are 
presumed  to  be  valid,  and  that  it  is  the 
duty  of  the  courts  to  declare  them  valid 
unless  they  clearly  transgress  some  limita- 
tion upon  the  power  of  the  legislature,  im- 
posed by  the  state  or  Federal  Constitutions. 
The  public  policy  of  a  state  is  expressed  in 
its  Constitution  and  statutes,  and  in  its 
common  law,  as  found  in  the  opinions  of 
its  court  of  last  resort;  and  if  the  Consti- 
tution or  statutes  speak  upon  a  subject, 
the  public  policy  of  the  state  is  fixed  to 
that  extent. 
L.R.A.1916A. 


If  we  were  permitted  to  consider  the 
reasons  which  actuated  the  legislature  in 
passing  this  act,  they  might  easily  be  found 
in  the  generally  conceded  harshness  of  the 
common-law  rules  governing  the  liability 
of  employers  to  employees  injured  while 
engaged  in  service,  which  was  forcibly 
stated  by  Chief  Justice  Winslow,  of  the 
supreme  court  of  Wisconsin,  in  deciding 
Driscoll  v.  Allis-Chalmers  Co.  144  Wis.  468, 
129  N.  W.  408,  where  he  said:  "It  gives 
me  no  pleasure  to  state  these  long-estab- 
lished principles  of  the  law  of  negligence. 
I  have  no  fondness  for  them.  If  I  were  to 
consult  my  feelings  alone,  I  would  far  pre- 
fer to  let  the  case  pass  in  silence.  No 
part  of  my  labor  on  this  bench  has  brought 
such  heart-weariness  to  me  as  that  ever- 
increasing  part  devoted  to  the  considera- 
tion of  personal-injury  actions  brought  by 
employees  against  their  employers.  The 
appeal  to  the  emotions  is  so  strong  in  these 
cases,  the  results  to  life  and  limb  and  hu- 
man happiness  so  distressing,  that  the  at- 
tempt to  honestly  administer  cold,  hard 
rules  of  law,  which  either  deny  relief  en- 
tirely or  necessitate  a  new  trial,  make 
drafts  upon  the  heart  and  nerves  which 
no  man  can  appreciate  who  has  not  been 
obliged  to  meet  the  situation  himself.  If 
it  be  said  that  some  of  these  rules  are  ar- 
chaic and  unfitted  to  modern  industrial 
conditions,  I  do  not  disagree;  in  fact,  that 
has  been  my  own  opinion  for  long.  Upon 
reflection  it  seems  that  this  could  hardly  be 
otherwise.  Principles  which  were  first  laid 
down  in  the  days  of  the  small  shop,  few 
employees,  and  simple  machinery,  could 
hardly  be  expected  to  apply  with  justice 
to  the  industrial  conditions  which  now  sur- 
round us." 

The  basic  principle  underlying  the  laws 
of  this  character,  of  which  the  Kentucky 
act  is  typical,  is  that  the  business  of  the 
country  should  bear  the  financial  burden 
of  all  industrial  accidents  rather  than  the 
workmen  who  happen  to  be  the  victims  of 
particular  accidents.  The  question  of  direct 
fault  is  not  considered.  The  fact  alone 
that  the  victim  suffers  loss  of  wages  or 
bodily  impairment  entitles  him  to  compen- 
sation, mnless  the  injuries  received  are  due 
to  his  own  wilful  negligence.  Under  the 
common  law,  damages  for  personal  injuries 
are  recoverable  only  when  the  accident  was 
due  to  the  fault  of  the  employer  or  of  his 
servants;  and  in  many  cases  a  recovery 
cannot  be  had,  even  though  the  employer 
and  his  servants  had  been  negligent,  if  the 
employee  had  been  guilty  of  contributory 
negligence.  This  method  of  adjusting  in- 
dividual rights  is  necessarily  expensive,  un- 
certain, and  unsatisfactory  to  all  parties 
concerned. 


398 


WORKMEN'S  COMPENSATION. 


But  whether  the  legislature  acted  for 
the  reasons  above  suggested,  or  for  any  of 
them,  if  it  had  the  right  to  pass  the  act  in 
question,  the  case  is  ended  so  far  as  this 
court  is  concerned.  With  this  limitation 
in  view,  I  will  consider,  as  briefly  as  pos- 
sible, the  principal  objections  urged  against 
the  constitutionality  of  the  act. 

It  is  urged  that  the  act  is  compulsory, 
in  that  it,  in  effect,  compels  the  employer 
and  the  employee  to  accept  its  provisions 
under  penalty  of  losing  their  rights  under 
§§  54  and  241  of  the  Constitution,  which 
read  as  follows: 

"54.  The  general  assembly  shall  have  no 
power  to  limit  the  amount  to  be  recovered 
for  injuries  resulting  in  death,  or  for  in- 
juries to  person  or  property." 

"241.  Whenever  the  death  of  a  person 
shall  result  from  an  injury  inflicted  by  neg- 
ligence or  wrongful  act,  then,  in  every  such 
case,  damages  may  be  recovered  for  such 
death,  from  the  corporations  and  persons 
so  causing  the  same.  Until  otherwise  pro- 
vided by  law,  the  action  to  recover  such 
damages  shall  in  all  cases  be  prosecuted 
by  the  personal  representative  of  the  de- 
ceased person.  The  general  assembly  may 
provide  how  the  recovery  shall  go  and  to 
whom  belong;  and  until  such  provision  is 
made  the  same  shall  form  part  of  the  per- 
sonal estate  of  the  deceased  person." 

As  I  understand  the  majority  opinion, 
this  is  the  only  ground  upon  which  it  holds 
the  Kentucky  act  of  1914  invalid.  It  tacit- 
ly overrules  the  many  other  constitutional 
objections  urged  against  the  act. 

Section  29  provides  that  any  employee, 
subject  to  the  act,  may  contract  with  his 
employer,  who  is  subject  to  the  act,  and 
who  elects  to  pay  the  premiums  provided 
thereby,  to  accept  the  compensation  pro- 
vided by  the  act  for  injured  employees  in 
lieu  of  any  cause  of  action  which  he  or  his 
representative  might  have,  arising  from  the 
negligence  of  his  employer,  or  his  agents  or 
servants,  and  to  waive  all  causes  of  action 
against  said  employer  conferred  by  the 
Constitution  or  statutes  of  this  state,  or 
by  the  common  law,  for  his  injury  or  death 
occurring  through  the  negligence  of  the 
employer  or  his  agents. 

Section  30  provides  that  such  a  contract 
between  an  employee  and  employer  shall 
be  conclusively  presumed  to  have  been  made 
in  every  case  where  an  employer  has  elect- 
ed to  pay  into  the  fund,  if  such  employee 
shall  continue  to  work  for  the  employer 
thereafter  with  notice  that  the  employer 
has  elected  to  pay  into  the  fund;  and  the 
posting  of  printed  or  typewritten  notices 
in  conspicuous  places  about  the  employer's 
place  of  business,  at  the  time  of  the  elec- 
tion by  the  employer  to  pay  into  the  fund, 
L.R.A.1916A. 


that  he  has  so  elected,  shall  constitute  suffi- 
cient notice  to  all  of  his  employees  of  the- 
fact  that  he  has  made  such  an  election; 
and  the  continuance  in  the  service  of  such 
employer  shall  be  deemed  a  waiver  by  the- 
employee  of  his  right  of  action,  except  as- 
provided  in  §  32. 

Section  32  provides  that  any  employee,, 
prior  to  receiving  an  injury,  may  give  no- 
tice to  his  employer,  who  has  elected  to  pay 
into  the  fund,  that  he  will  not  accept  the- 
benefit  of  the  act  and  waive  his  right  of 
action  as  provided  thereby,  such  notice  to- 
be  served  on  the  employer  and  a  copy 
mailed  to  the  Compensation  Board.  If, 
thereafter,  the  employee  shall  be  injured 
or  killed  while  in  the  service  of  the  employ- 
er, who  has  elected  to  operate  under  the 
act,  and  an  action  shall  be  instituted 
against  the  employer  to  recover  damages, 
the  employer  may  rely  upon  the  defenses- 
of  contributory  negligence,  assumed  risk, 
and  the  fellow-servant  rule. 

Section  34  provides  that  an  employer  who- 
shall  not  elect  to  pay  into  the  compensation 
fund  the  premiums  provided  by  the  act  shall 
not,  in  a  suit  against  him  for  personal  in- 
juries or  death  of  an  employee,  avail  him- 
self of  the  defenses  of  assumption  of  risk 
or  contributory  negligence. 

It  will  thus  be  seen  that  the  act  makes 
it  voluntary  whether  any  employer  shall 
accept  the  provisions  of  the  act  on  the  one- 
ha.nd,  or  whether  the  employee  shall  work 
for  or  remain  in  the  service  of  his  employer 
after  the  latter  has  made  his  election  to- 
work  under  the  act,  taking  from  the  em- 
ployer, however,  his  common-law  defenses 
above  specified  in  case  he  declines  to  work 
under  the  act,  and  saving  to  the  employer 
those  defenses  against  his  employee  who* 
refuses  to  accept  the  provisions  of  the  act. 
It  is  contended  that  these  provisions  com- 
pel both  the  employer  and  the  employee  to- 
accept  the  provisions  of  the  act,  by  taking1 
away  their  constitutional  rights  in  case 
they  refuse  \o  come  within  the  act. 

Many  of  the  earlier  laws  were  compul- 
sory in  form,  and  sought  to  compel  employ- 
ers and  employees  to  accept  them  in  lieu  of 
their  former  remedies.  The  New  York  act,, 
which  was  held  to  be  unconstitutional  in 
Ives  v.  South  Buffalo  R.  Co.  201  N.  Y.  271^ 
34  L.R.A.(N.S.)  162,  94  N.  E.  431,  Ann. 
Cas.  1912B,  157,  1  N.  C.  C.  A.  517,'  was  by 
its  terms  compulsory.  In  the  Ives  Case, 
supra,  the  New  York  court  of  appeals  held4 
the  act  unconstitutional,  because  its  com- 
pulsory features  denied  the  parties  due  proc- 
ess of  law,  both  under  the  state  and  the- 
Federal  Constitutions.  It  was  further  held 
in  that  case,  however,  that  the  abolition  of" 
the  common-law  defenses,  the  classification! 
of  industries,  and  the  granting  of  new  reme- 


KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BD.     399 


dies  to  the  employee,  were  all  permissible, 
and,  further,  that  the  act  was  not  an  undue 
exercise  of  the  police  power. 

Later,  in  State  ex  rel.  Davis-Smith  Co. 
v.  Clausen,  65  Wash.  156,  37  L.R.A.(N.S.) 
466,  117  Pac.  1101,  2  N.  C.  C.  A.  823,  3 
N.  C.  C.  A.  599,  the  supreme  court  of  Wash- 
ington upheld  a  compulsory  act  embodying 
the  same  features  which  the  New  York 
court  of  appeals  had  held  were  fatal  to  the 
New  York  act.  The  Washington  court  ex- 
pressly repudiated  the  reasoning  employed 
by  the  New  York  court. 

Still  later,  in  Cunningham  v.  Northwest- 
ern Improv.  Co.  44  Mont.  180,  119  Pac.  554, 
the  supreme  court  of  Montana  sustained  a 
compulsory  act  as  against  the  objections  to 
it,  based  upon  its  exercise  of  the  police 
power,  and  that  it  attempted  class  legisla- 
tion, illegal  taxation,  denial  of  jury  trial, 
due  process  of  law,  and  the  delegation  of 
judicial  authority.  The  Montana  act  was, 
however,  held  unconstitutional  solely  upon 
the  ground  that  it  denied  the  employer  the 
equal  protection  of  the  laws,  in  that  the 
compensation  system  was  as  to  him  exclu- 
sive, while  the  employee  might,  after  re- 
ceiving the  injury,  elect  to  renounce  the 
provisions  of  the  act  and  proceed  in  his  ac- 
tion at  law  for  damages  against  his  employ- 
er, who  had  already  been  required  to  pur- 
chase insurance  in  the  state  fund. 

In  the  meantime  the  Wisconsin  compen- 
sation law  was  enacted,  with  the  elec- 
tive features  of  the  Kentucky  act,  and  the 
same  objection  was  there  made  as  is  now 
here  made,  that  the  act  was  compulsory  in 
its  effect.  But,  in  overruling  that  objection, 
and  in  sustaining  the  act,  the  Wisconsin 
supreme  court,  in  Borgnis  v.  Falk  Co.  147 
Wis.  327,  37  L.R.A.(N.S.)  500,  133  N.  W. 
209,  3  N.  C.  C.  A.  649,  said:  "Passing 
from  these  questions  of  classification,  we 
meet  the  objection  that  the  law.  while  in  its 
words  presenting  to  employer  and  employee 
a  free  choice  as  to  whether  he  will  accept 
its  terms  or  not,  is  in  fact  coercive,  so 
that  neither  employer  nor  employee  can  be 
said  to  act  voluntarily  in  accepting  it.  As 
to  the  employer,  the  argument  is  that  the 
abolition  of  the  two  defenses  is  a  club  which 
forces  him  to  accept;  and  as  to  the  em- 
ployee, the  argument  is  that  if  his  employer 
accepts  the  law,  the  employee  will  feel  com- 
pelled to  accept  also  through  fear  of  dis- 
charge if  he  does  not  accept.  Both  of  these 
arguments  are  based  upon  conjecture. 
Laws  cannot  be  set  aside  upon  mere  specu- 
lation or  conjecture.  The  court  must  be 
able  to  say  with  certainty  that  an  unlaw- 
ful result  will  follow.  We  do  not  see  how 
any  such  thing  can  be  said  here.  No  one 
can  say  with  certainty  what  results  will 
follow  in  the  practical  workings  of  the  law. 
L.R.A.1916A. 


It  may  well  be  that  many  manufacturers, 
especially  those  employing  small  numbers  of 
employees  and  in  the  less  dangerous  trades, 
will  deliberately  conclude  that  it  will  be 
better  business  policy  to  exercise  greater 
care  in  guarding  their  employees  from  pos- 
sible danger  and  greater  discrimination  in 
the  employment  of  careful  men,  and  reject 
the  law  entirely,  running  the  risk  of  being 
able  to  prevent  all  or  nearly  all  accidents. 
It  seems  extremely  probable  that  the  great 
bulk  of  workmen,  especially  of  the  unskilled 
classes,  will  be  glad  to  come  under  the  act 
and  thus  secure  a  certain  compensation  in 
case  of  injury,  in  place  of  that  very  uncer- 
tain and  expensive  thing,  namely,  the  final 
result  of  a  lawsuit.  But  whether  this  be  so 
or  not,  it  may  be  considered  as  reasonably 
certain  that  very  many  will  elect  to  come 
under  the  act  voluntarily  and  freely,  and 
that  those  who  do  not  will  probably  come 
from  the  ranks  of  skilled  labor,  who  will 
deem  the  rates  of  compensation  under  the 
law  as  entirely  inadequate,  or  will  be  care- 
ful workmen  in  the  less  dangerous  trades, 
who  will  see  no  gain  in  bartering  their  com- 
mon-law rights  for  the  restricted  remedies 
furnished  by  the  statute.  It  cannot  be  said 
with  any  certainty  that  such  men  will  be 
discharged  for  their  failure  to  voluntarily 
come  under  the  law.  The  probability  would 
seem  rather  to  be  that  they  would  be  of 
a  class  which  the  employer  would  wish  to 
keep  in  his  employ,  notwithstanding  their 
attitude  towards  the  law.  These  matters 
are,  however,  purely  speculative  and  con- 
jectural. None  can  say  what  the  practical 
operation  of  the  law  will  be.  It  is  enough 
for  our  present  purpose  that  no  one  can 
say  with  certainty  that  it  will  operate  to 
coerce  either  employer  or  employee." 

Laws  containing  the  elective  feature  have 
been  enacted  in  Ohio,  New  Jersey,  Wiscon- 
sin, Minnesota,  Iowa,  Massachusetts,  and 
Illinois,  where  they  have  been  upheld  by 
the  courts;  and  in  Michigan,  Connecticut, 
Kansas,  West  Virginia,  Oregon,  Nebraska, 
Nevada,  New  Hampshire,  Rhode  Island, 
Louisiana,  and  Texas,  where  no  decisions 
have  yet  been  made. 

The  Ohio  compensation  act  was  likewise 
elective  in  its  provisions,  and  in  State  ex 
rel.  Yaple  v.  Creamer,  85  Ohio  St.  349,  39 
L.R.A.(N.S.)  694,  97  N.  E.  602,  the  con- 
stitutionality of  the  Ohio  act  was  attacked 
upon  the  ground  that  it  was  coercive,  and 
deprived  persons  of  their  freedom  of  con- 
tract, and  of  their  property  without  due 
process  of  law,  and  that  it  was  not  sus- 
tainable under  the  police  power.  All  of 
these  objections  were  overruled,  and  the  act 
was  sustained  throughout.  In  answer  to 
the  contention  that  the  statute  was  coer- 
cive, the  supreme  court  of  Ohio  said:  "It 


400 


WORKMEN'S  COMPENSATION. 


is  urgently  insisted  that,  while  the  law  is 
apparently  permissive,  and  leaves  its  opera- 
tion to  the  election  of  employers  and  em- 
ployees, it  is  really  coercive,  and  upon  this 
premise  much  persuasive  argument  against 
the  validity  of  the  law  is  based.  This  is 
an  important  question  in  the  case.  An  ex- 
amination of  the  section  touching  the  ques- 
tions made  is  here  necessary.  After  pro- 
viding in  §  20-1  that  an  employer  who 
elects  to  comply  with  the  act  shall  be  re- 
lieved from  liability  to  the  employee  at 
common  law,  or  by  statute  (except  as  pro- 
vided in  §  21-2),  it  is  then  enacted  in  § 
21-1 :  'All  employers  who  shall  not 
pay  into  the  insurance  fund 
shall  be  liable  to  their  employees  for  dam- 
ages .  .  .  caused  by  the  wrongful  act, 
neglect,  or  default  of  the  employer,  his 
agents,'  etc.  And  in  such  cases  the  defenses 
of  assumption  of  risk,  fellow  servant,  and 
contributory  negligence  are  not  available. 
So  that  an  employer  who  elects  not  to  come 
into  the  plan  of  insurance  may  still  escape 
liability  if  lie  is  not  guilty  of  wrongful  act, 
negligence,  or  default.  His  liability  is  not 
absolute,  as  in  the  case  of  the  New  York 
statute  hereinafter  referred  to.  And  it 
cannot  be  said  that  the  withdrawal  of  the 
defenses  of  assumption  of  risk,  fellow  serv- 
ant, and  contributory  negligence,  as  against 
an  employer  who  does  not  go  into  the  plan, 
is  coercive,  for  such  withdrawal  is  in  har- 
mony with  the  legislative  policy  of  the 
state  for  a  number  of  years  past.  The  law 
known  as  the  Norris  law,  passed  in  1910, 
withdrew  these  defenses  in  the  particulars 
covered  by  the  law.  As  to  the  employee,  if 
the  parties  do  not  elect  to  operate  under 
the  act,  he  has  his  remedy  for  the  neglect, 
wrongful  act,  or  default  of  his  employer 
and  agents  as  before  the  law  was  passed, 
and  is  not  subject  to  the  defenses  named. 
If  the  parties  are  operating  under  the  act, 
the  employee  contributes  to  an  insurance 
fund  for  the  benefit  of  himself  or  his  heirs, 
and  in  case  he  is  injured  or  killed,  he  or 
they  will  receive  the  benefit,  even  though  his 
injury  or  death  was  caused  by  his  own 
negligent  or  wrongful  act,  not  wilful.  And 
that  is  not  all.  Under  §  21-2  if  the  parties 
are  operating  under  the  act  and  the  em- 
ployee is  injured  or  killed,  and  the  injury 
arose  from  the  wilful  act  of  his  employer, 
his  officer  or  agent,  or  from  failure  of  the 
employer  or  agent  to  comply  with  legal  re- 
quirements as  to  safety  of  employees,  then 
the  injured  employee  or  his  legal  represen- 
tative has  his  option  to  claim  under  the 
act  or  sue  in  court  for  damages.  There- 
fore the  only  right  of  action  which  this 
statute  removes  from  the  employee  is  the 
right  to  sue  for  mere  negligence  (which  is 
not  wilful  or  statutory)  of  his  employer, 
L.R.A.1916A. 


and  it  is  within  common  knowledge  that 
this  has  become  in  actual  practice  a  most 
unsubstantial  thing.  It  is  conceded  by 
counsel  that  the  particulars  named  in  §  21- 
2  are  such  as  form  the  basis  for  a  large 
portion  of  claims  for  personal  injuries. 
Many  employers  may  elect  to  remain  out- 
side its  provisions.  It  would  not  be  strange 
if  many  do  so.  On  the  other  hand,  some 
workmen  may  feel  disposed  to  do  likewise 
in  spite  of  what  would  seem  to  be  to  their 
manifest  advantage  in  securing  the  benefits 
of  the  insurance.  However,  if  there  should 
be  such  general  acceptance  of  and  compli- 
ance with  the  statute  as  its  framers  hope 
for,  so  as  to  bring  a  large  part  of  the  labor 
employed  in  the  industrial  enterprises  of 
the  state  within  its  influence  and  operation, 
that  would  not  demonstrate  its  coercive 
character.  On  the  contrary,  it  would  justi- 
fy the  enactment.  Naturally  time  and  ex- 
perience will  disclose  imperfections  and  in- 
efficiencies in  the  plan;  but  if  it  should 
prove  to  be  feasible,  and  appropriate  in  a 
general  way,  these  imperfections  can  be  cor- 
rected by  the  legislature.  On  account  of 
the  common-law  and  statutory  rights  still 
preserved  to  the  parties  by  this  statute  (as 
we  have  pointed  out),  in  cases  where  the 
election  is  made  to  come  under  its  provi- 
sions, as  well  as  not  to  do  so,  taken  in  con- 
nection with  the  advantage  to  each  which 
the  plan  contemplates,  we  cannot  say  that 
the  statute  is  coercive.  As  was  said  in  the 
Wisconsin  case:  'Laws  cannot  be  set  aside 
upon  mere  conjecture  or  speculation.  The 
court  must  be  able  to  say  with  certainty 
that  an  unlawful  result  will  follow.'  [147 
Wis.  327.]  We  do  not  see  how  any  such 
thing  can  be  said  here.  Every  consideration 
of  prudence  and  self-interest  (things  not 
easily  associated  with  compulsion  and  co- 
ercion) would  seem  to  lead  an  employee 
to  voluntarily  make  the  contribution  and 
waiver  contemplated."  And  in  closing  its 
opinion  in  the  Creamer  Case,  supra,  the 
supreme  court  of  Ohio  said :  "It  is  sug- 
gested that  this  legislation  marks  a  radical 
step  in  our  governmental  policy  not  con- 
templated by  the  Constitution,  and  which 
it  is  the  duty  of  the  court  to  condemn. 
But  it  creates  no  new  right,  or  new  reme- 
dy for  wrong  done.  It  is  an  effort  to,  in 
some  degree,  answer  the  requirements  of 
conditions  which  have  come  in  an  age  of 
invention  and  momentous  change.  The 
courts  of  the  country,  while  firmly  resisting 
encroachment  on  the  Constitutions  in  the 
past,  have  yet  found  in  their  ample  limits 
sufficient  to  enable  us  to  meet  the  emergen- 
cies and  needs  of  our  development,  and  we 
do  not  find  that  this  statute  goes  beyond 
the  bounds  put  upon  the  legislative  will." 
Again,  the  same  question  was  decided  the 


KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BD.     401 


same  way  in  Opinion  of  Justices,  209  Mass. 
607,  96  N.  E.  308,  1  N.  C.  C.  A.  557.  The 
Massachusetts  compensation  law  contained 
like  elective  provisions,  and  it  was  like- 
wise attacked  as  being,  in  fact,  com- 
pulsory. But  in  answer  to  that  objection 
the  Massachusetts  justices  contrasted  the  '  Link-Belt  Co.  261  111.  465,  104  N.  E.  216, 
Massachusetts  act  with  the  New  York  stat-  Ann.  Gas.  1915A,  241,  5  N.  C.  C.  A.  401, 


elective  features,  after  an  exhaustive  re- 
view of  all  the  constitutional  objections 
that  could  be  urged  against  it. 

Tn  speaking  generally  of  objections  made 
to  the  Illinois  compensation  act,  the  su- 
preme court  of  that  state,  in  Deibeikis  v. 


ute,  saying:  "There  is  nothing  in  the  act 
which  compels  an  employer  to  become  a 
subscriber  to  the  association,  or  which  com- 
pels an  employee  to  waive  his  right  of  ac- 
tion at  common  law  and  accept  the  compen 
sation  provided  for  in  the  act.  In  this 
respect  the  act  differs  wholly,  so  far  as  the 
employer  is  concerned,  from  the  New  York 
statute  above  referred  to.  By  subscribing 
to  the  association  an  employer  voluntarily 
agrees  to  be  bound  by  the  provisions  of  the 
act.  The  same  is  true  of  an  employee  who 
does  not  choose  to  stand  upon  his  common- 
law  rights.  An  employer  who  does  not 
subscribe  to  the  association  will  no  longer 
have  the  right  in  an  action  by  his  employee 
against  him  at  common  law  to  set  up  the 
defense  of  contributory  negligence  or  as- 
sumption of  the  risk,  or  to  show  that  the 
injury  was  caused  by  the  negligence  of  a 
fellow  servant.  In  the  case  of  an  employee 
who  does  not  accept  the  compensation  pro- 
vided for  by  the  act,  and  whose  employer 
has  become  a  subscriber  to  the  association, 
an  action  no  longer  can  be  maintained  for 
death  under  the  employers'  liability  act. 
But  these  considerations  do  not  constitute 
legal  compulsion  or  a  deprivation  of  funda- 
mental rights.  We  do  not  deem  it  necessa- 
ry to  take  up  and  consider  in  detail  the 
numerous  provisions  by  which  the  right  to 
compensation  and  the  amount  thereof  and 
the  persons  entitled  thereto,  and  the  course 
of  procedure  to  be  followed  and  matters 
relating  thereto,  are  to  be  settled  and  de- 
termined. We  assume,  however,  that  the 
meaning  of  §§  4  and  7  of  part  3  of  the  pro- 
posed act  is  that  the  approved  agreement  or 
decision  therein  mentioned  is  to  be  enforced 
by  proper  proceedings  in  court,  and  not  by 
process  to  be  issued  by  the  Industrial  Acci- 
dent Board  itself.  Taking  into  account  the 
noncompulsory  character  of  the  proposed 
act,  we  see  nothing  in  any  of  these  provi- 
sions which  is  not  'in  conformity  with'  the 
14th  Amendment  of  the  Federal  Constitu- 
tion, or  which  infringes  upon  any  provision 
of  our  own  Constitution  in  regard  to  the 
taking  of  property  'without  due  process  of 
law.' " 

To  these  cases  there  should  be  added  the 
late  case  of  Mathison  v.  Minneapolis  Street 
R.  Co.  126  Minn.  286,  L.R.A.— ,  — ,  148 
N.  W.  71,  5  N.  C.  C.  A.  871,  which  unani- 
mously sustained  the  Minnesota  workmen's 
compensation  act  of  1913,  containing  the 
L.R.A.1916A.  26 


said:  "The  other  objections  urged  may  all 
be  answered  by  the  statement  that  the  act  is 
elective,  and  not  compulsory.  Were  the  act 
deprived  of  its  elective  feature,  and  made 
compulsory  upon  every  employer  and  em- 
ployee engaged  in  the  enterprises  enumer- 
ated in  §  2,  very  different  and  more  serious 
questions  would  be  presented.  Being  elec- 
tive, the  act  does  not  become  effective  as  to 
any  employer  or  employee  unless  such  em- 
ployer or  employee  chooses  to  come  within 
its  provisions." 

Without  further  elaboration,  it  is  suffi- 
cient to  refer  to  Sexton  v.  Newark  Dist. 
Teleg.  Co.  84  N.  J.  L.  85,  86  Atl.  451,  3  N. 
C.  C.  A.  569,  and  to  Hawkins  v.  Bleakley, 
220  Fed.  378,  wherein  the  elective  acts  of 
New  Jersey  and  Iowa  were  sustained,  as  not 
being  coercive.  Jn  no  case  has  an  elective 
compensation  act  been  held  invalid;  on  the 
contrary,  statutes  containing  elective  fea- 
tures substantially  like  the  Kentucky  stat- 
ute have  expressly  been  upheld  in  Wiscon- 
sin, Ohio,  Massachusetts,  and  Minnesota, 
while  Washington  and  Montana  have  gone 
further  and  sustained  compulsory  acts. 

Kentucky  is  to  be  the  first  state  making 
this  radical  departure;  and  in  doing  so  this 
court  fails,  it  seems  to  me,  to  mark  the  es- 
sential legal  distinction  between  compulsory 
and  elective  acts,  by  giving  more  effect  to 
imaginative  cases  than  to  real  cases.  It 
may  be  readily  conceded  that,  if  the  act 
were  compulsory,  it  would  be  inimical  to 
the  sections  of  the  Constitution  last  above 
referred  to;  but  when  it  has  been  demon- 
strated that  the  act  is  elective  only,  and  not 
compulsory  in  its  provisions,  all  of  these 
constitutional  objections  relating  to  the 
exercise  of  the  police  power,  reasonable  clas- 
sification, taking  property  without  due 
process  of  law,  depriving  one  of  a  jury 
trial,  etc.,  disappear  as  having  no  applica- 
tion to  the  case.  They  can  only  apply  when 
the  act  is  compulsory.  I  do  not  understand 
it  to  be  claimed  that  parties  may  not  agree 
to  waive  their  constitutional  or  legal  rights. 
To  refuse  them  that  right  would,  in  itself, 
be  unconstitutional,  as  depriving  them  of 
the  right  of  free  contract.  These  objections 
to  elective  acts  have  been  ably  and  exhaus- 
tively discussed  in  the  cases  from  New  Jer- 
sey, Wisconsin,  Massachusetts,  Ohio,  Min- 
nesota, and  Illinois,  above  referred  to,  and 
in  each  instance  many,  if  not  all,  of  these 


402 


WORKMEN'S  COMPENSATION. 


constitutional   objections  have  been   raised, 
and  in  every  case  overruled. 

The  fact  is  not  to  be  overlooked  that  the 
elective  feature  of  the  act,  which  is  made 
the  controlling  question  in  the  majority 
opinion  in  this  case,  is  not  inimical  to  any 
provision  peculiar  to  the  Kentucky  Consti- 
tution. The  elective  feature  is  to  be  given 
the  same  effect  under  the  Constitutions  of 
the  various  states  wherein  compensation 
laws  have  been  passed;  the  real  question 
being  in  each  case  whether  the  act  is  in  fact 
compulsory.  If  it  is  not  compulsory,  but 
elective,  then  all  these  constitutional  ob- 
jections necessarily  disappear.  It  does  not 
meet  the  argument  to  say  that  provisions 
like  §§  54  and  241  of  the  Kentucky  Con- 
stitution are  not  found  in  other  Constitu- 
tions. In  view  of  the  uniform  line  of  de- 
cisions to  the  effect  that  the  elective  clause 
is  elective,  and  not  compulsory,  I  am  of  the 
opinion  that  the  Kentucky  compensation  act 
is  a  valid  and  enforceable  law,  and  should 
not  be  set  aside  upon  a  mere  speculation 
or  conjecture.  As  was  said  in  Matheson  v. 
Minneapolis  Street  R.  Co.  supra:  .  "We 
shall  not  stop  to  discuss  the  shortcomings 
and  unsatisfactory  results  of  the  law  of 
negligence  as  applied  to  present-day  indus- 
trial conditions;  nor  the  desirability  of  pro- 
viding more  certain,  effective,  and  inexpen- 
sive relief  for  injured  workmen  than  the 
present  common-law  actions  afford;  nor  the 
economic  reasons  for  imposing  upon  an  em- 
ployer, not  because  he  is  at  fault,  but  as  a 
burden  incident  to  his  business,  the  obliga- 
tion to  contribute  to  the  support  of  employ- 
ees disabled  through  injuries  received  in  the 
course  of  their  employment.  Much  consid- 
eration has  been  given  to  these  questions 
by  publicists  and  students  of  industrial, 
economic,  and  social  problems;  and  it  has 
become  generally  recognized  that  the  com- 
mon law  fails  to  make  adequate  or  equitable 
provision  for  the  economic  loss  resulting 
from  a  disability  which  deprives  the  work- 
man of  his  earning  power.  But  changes  in 
the  laws,  and  in  the  public  policies  recog- 
nized in  the  laws,  must  emanate  from  the 
lawmaking  power,  and  not  from  the  courts. 
The  courts  must  administer  the  law  as  they 
find  it,  not  as  they  may  think  it  ought  to 
be.  Hence  arguments  showing  the  need  for 
a  change  in*the  laws  governing  the  relations 
of  master  and  servant  should  be  addressed 
to  the  legislative,  and  not  to  the  judicial, 
branch  of  the  government.  The  briefs  have 
given  considerable  attention  to  these  legis- 
lative questions;  but  it  is  sufficient,  for 
present  purposes,  to  say  that  the  arguments 
advanced  furnish  ample  basis  for  legisla- 
tive action  under  the  police  power  of  the 
state,  and  that  laws  enacted  for  the  purpose 
of  adjusting  and  determining  the  respective 
L.R.A.1916A. 


rights  and  obligations  of  employer  and  em- 
ployee may  make  radical  innovations  in  pre- 
existing policies  and  rules  of  law,  so  long 
as  they  do  not  infringe  some  constitutional 
guaranty.  In  considering  the  questions  now 
before  the  .court,  it  is  proper  to  say,  at 
the  outset,  that  all  laws  enacted  by  the 
legislature  are  presumed  to  be  valid,  and 
that  it  is  the  duty  of  the  courts  to  declare 
them  valid,  unless  they  clearly  transgress 
some  limitation  upon  the  power  of  the  legis- 
lature imposed  by  the  state  or  Federal  Con- 
stitution. Roos  v.  State,  6  Minn.  428,  Gil. 
291;  State  v.  Corbett,  57  Minn.  345,  24 
L.R.A.  498,  4  Inters.  Com.  Rep.  694,  59  N. 
W.  317 ;  Lommen  v.  Minneapolis  Gaslight 
Co.  65  Minn.  196,  33  L.R.A.  437,  60  Am. 
St.  Rep.  450,  68  N.  W.  53;  Union  P.  R.  Co. 
v.  United  States,  99  U.  S.  700,  25  L.  ed. 
496;  Powell  v.  Pennsylvania,  127  U.  S.  678, 
32  L.  ed.  253,  8  Sup.  Ct.  Rep.  992,  1257." 

Believing,  as  I  do,  that  the  majority  opin- 
ion of  the  court  is  not  sustained  by  reason 
or  precedent,  but  is  directly  contrary  to 
both,  I  have  felt  it  proper,  on  account  of 
the  importance  of  the  case,  to  give  the 
reasons  for  my  dissent. 

Chief  Justice  Hobson  and  Judge  Las- 
sing  concur  in  this  dissent. 

A  petition  for  rehearing  having  been  filed, 
Dorsey,  Special  Judge,  on  January  27, 
1915,  handed  down  the  following  additional 
opinion  (162  Ky.  387,  172  S.  W.  674)  : 

In  the  petition  for  a  rehearing  we  are 
asked  to  modify  and  extend  the  opinion. 
While  in  no  particular  receding  from  the 
position  taken  in  the  opinion  herein,  we 
have  thought  proper  to  make  certain  state- 
ments therein  more  explicit: 

First.  The  provisions  of  the  present  com- 
pensation act,  as  far  as  they  affect  the  em- 
ployer, are  unobjectionable,  as  they  do  not 
conflict  with  any  provisions  of  the  Constitu- 
tion. 

Second.  Any  employee  coming  within  the 
provisions  of  the  act  may  voluntarily  agree 
to  accept  its  provisions  fixing  and  limiting 
his  recovery  in  case  of  injury. 

Third.  He  may  likewise  voluntarily  ac- 
cept the  provisions  of  the  act  fixing  the 
amount  that  shall  be  recovered  in  the  event 
of  his  death,  and  said  sum  should  be  paid 
to  his  dependents,  if  he  leaves  any,  and,  if 
not,  to  his  personal  representatives.  The 
legislature  has  no  power  to  direct  that  this 
sum  shall  in  any  event  be  paid  into  the 
compensation  fund. 

Fourth.  Some  provision  should  be  made 
in  the  act  whereby  the  employee  signifies  his 
acceptance  of  the  provisions  of  the  act  by 
some  affirmative  act  on  his  part.  Silence 


KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BD.     403 


on  this  subject  should  not  be  construed  into 
acceptance. 

Fifth.  Provision  should  be  made  in  the 
act  for  appeal  to  a  court  of  competent  juris- 
diction for  review  in  all  cases  where  com- 
pensation is  denied,  or  where  a  less  sum  is 


allowed  by  the  Board  than  that  claimed  by 
the  injured  employee. 

For  the  reasons  indicated  in  the  opinion, 
the  act  in  its  entirety  is  void. 

The  petition  for  a  rehearing  is  overruled. 


NEW  YORK  COURT  OF  APPEALS. 

RE  CLAIM  OF  MARIE  JENSEN,  Respt., 

v. 
SOUTHERN    PACIFIC    COMPANY,   Appt. 

(215  N.  Y.  514,  109  N.  E.  600.) 

Statute  —  construction  —  workmen's 
compensation  act. 

1.  The  provision  for  injuries  received  in 
longshore  work  in  one  section  of  the  work- 
men's  compensation   act  excludes   such   in- 
juries from  the  provisions   of  another  sec- 
tion  dealing  with   injuries  received   in   the 
operation    of    vessels    other    than    those    of 
other    states    or    countries    used    in    inter- 
state or  foreign  commerce. 

For  other  cases,  see  Statutes,  II,  a,  in 
Dig.  1-52  N.  8. 

Commerce  —  state  workmen's  compen- 
sation act  —  validity. 

2.  A    state    workmen's    compensation    act 
may  be  made  to  apply  to  injuries  received 
in  interstate  commerce  so  far  as  they  are 
not  provided  for  by  the  Federal  act,  or  the 
state  is  not  forbidden  by  Congress  to  provide 
for  such  injuries. 

For  other  cases,   see   Commerce  I.  in  Dig. 

1-52  N.  8. 
Statute    —    construction    —    workmen's 

compensation  act. 

3.  A    state    workmen's    compensation    act 
providing    compensation    in    general    terms 
for    injuries    received    on    railroads   applies 
to  injuries  received  in  interstate  commerce 
so  far  as  they  are  not  included  in  the  Fed- 
eral   act,    although   the    section    devoted   to 
interstate  commerce  provides  that  the  pro- 
visions of  the  act  shall  apply  to  employers 
and    employees    in    intrastate    and    also    in 
interstate   or   foreign   commerce,   for   whom 
a  rule  of  liability  or  method  of  compensa- 
tion has  been  or  may  be  authorized  by  Con- 
gress, only  to  the  extent  that  their  mutual 
connection   with   intrastate  commerce  work 
may    and    shall    be    clearly    separable    and 
distinguishable   from    interstate   or   foreign 
commerce,   except   that   such   employer   and 
his  employees  working  only  in  the  state  may 
accept  the  provisions  of  the  act. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  in  Dig.  1-52  N.  8. 

Master  and  servant  —  applicability  of 
Federal  employers'  liability  act  to 
steamboat  employees. 

4.  The    Federal    employers'    liability    act' 


applying  to  carriers  by   railroad   does   not 
apply   to   injuries   received   upon   a   steam- 
boat operated  by  an  interstate  railroad,  but 
not  related  to  its    rail  transportation. 
For  other  cases,   see   Master  and   Servant, 

II.  a,  in  Dig.  1-52  N.  S. 
Constitutional   law  —  workmen's  com- 
pensation act  —  due  process  of  law. 

5.  A  statute  providing  compensation  for 
loss  of  earning  power  of  injured  employees, 
by  a  system  of  compensatory  insurance  to 
be   created  by   employers,   does  not  deprive 
the  employer   of  his  property  without  due 
process  of  law,  although  compensation  must 
be   made   for    injuries   caused   without   his 
fault. 

For  other  cases,  see  Constitutional  Law,  II. 

6,  4,  in  Dig.  1-52  N.  8. 

Same   —   depriving   employee   of    right 
of  action  —  deprivation  of  property. 
6.  No    unconstitutional    taking    of     the 
property    of    an    employee    injured    in    the 
course  of  his  employment  is  effected  by  de- 
priving   him    of    his    common-law    right    of 
action  against  his  employer,  and  requiring 
him  to  look  to  an  insurance  fund  for  com- 
pensation for  loss  of  his  earning  power. 
For   other   cases,    see    Constitutional    Law, 
II.  6.  7,  6,  (1),  (a),  in  Dig.  1-52  N.  S. 

(July  13,  1915.) 

APPEAL  by  defendant  from  an  order  of 
the  Appellate  Division  of  the  Supreme 
Court,  Third  Department,  affirming  an 
award  of  the  State  Workmen's  Compensa- 
tion Commission  awarding  compensation  to 
claimant  for  the  death  of  her  husband. 
Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  Ray  Rood  Allen,  with  Messrs. 
Burlingham,  Montgomery,  &  Beecher, 
for  appellant: 

The  workmen's  compensation  law  de- 
prives the  employer  of  property  without  due 
process  of  law,  in  violation  of  the  14th 
Amendment  of  the  Constitution  of  the 
United  States. 

Ives  v.  South  Buffalo  R.  Co.  201  N.  Y.  271, 
34  L.R.A.(N.S.)  162,  94  N.  E.  431,  Ann. 
Gas.  1912B,  156,  1  N.  C.  C.  A.  517. 

The  workmen's  compensation  law  has  no 
application  where  employer  and  employee 
are  engaged  wholly  in  interstate  commerce. 
If  held  applicable,  it  is  unconstitutional,  in 


Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation   acts  generally, 
see  annotation,  ante,  23. 
L.R.A.1916A. 


As  to  the  constitutionality  of  workmen's 
compensation  acts,  see  annotation,  post,  409 


404 


WORKMEN'S  COMPENSATION. 


that  it  imposes  a  burden  upon  interstate 
commerce. 

McCabe  v.  Atchison,  T.  &  S.  F.  R.  Co.  235 
U.  S.  151,  160,  59  L.  ed.  169,  173,  35  Sup. 
Ct.  Rep.  69;  Connole  v.  Norfolk  &  W.  R. 
Co.  216  Fed.  823;  Galveston,  H.  &  S.  A. 
R.  Co.  v.  Texas,  210  U.  S.  217,  52  L.  ed. 
1031,  28  Sup.  Ct.  Rep.  638;  Philadel- 
phia &  S.  Mail  S.  S.  Co.  v.  Pennsylvania, 
122  U.  S.  326,  336,  30  L.  ed.  1200,  1201,  1 
Inters.  Com.  Rep.  308,  7  Sup.  Ct.  Rep.  1118; 
Barrett  v.  New  York,  232  U.  S.  14,  58  L.  ed. 
483,  34  Sup.  Ct.  Rep.  203. 

Congress  has  established  a  rule  of  lia- 
bility applicable  in  this  case;  the  work- 
men's compensation  law  has  no  application 
to  this  injury. 

The  Passaic,  190  Fed.  644,  122  C.  C.  A. 
466,  204  Fed.  266;  Erie  R.  Co.  v.  Jacobus, 
137  C.  C.  A.  151,  221  Fed.  335;  Pedersen  v. 
Delaware,  L.  &  W.  R.  Co.  229  U.  S.  146,  57 
L.  ed.  1125,  33  Sup.  Ct.  Rep.  648,  Ann.  Cas. 
1914C,  153,  3  N.  C.  C.  A.  779;  Barlow  v.  Le- 
high  Valley  R.  Co.  214  N.  Y.  116,  107  N.  E. 
814;  Schuede  v.  Zenith  S.  S.  Co.  216  Fed. 
566. 

The  act  is  not  applicable  because  the 
claimant  was  engaged  in  the  operation  of  a 
vessel  of  another  state  used  in  interstate 
commerce. 

Pacific  Mail  S.  S.  Co.  v.  Schmidt,  130  C. 
C.  A.  657,  214  Fed.  513;  The  Strathnairn, 
190  Fed.  673. 

Messrs.  Visscher,  Whalen,  &  Austin, 
for  New  York  Central  Railroad  Company, 
as  amicus  curiae. 

The  act  entitled  "Workmen's  Compen- 
sation Law"  (chap.  41,  Laws  1914)  is  un- 
constitutional, being  in  contravention  of  the 
provisions  of  the  14th  Amendment  to  the 
Federal  Constitution. 

Kentucky  State  Journal  Co.  v.  Workmen's 
Compensation  Board,  161  Ky.  562,  ante,  389, 
170  S.  W.  437,  1166;  Ives  v.  South  Buffalo 
R.  Co.  201  N.  Y.  271,  34  L.R.A.(N.S.)  162, 
94  N.  E.  431,  Ann.  Cas.  191 2B,  156,  1  N.  C. 
C.  A.  517 ;  Middleton  v.  Texas  Power  & 
Light  Co.  —  Tex.  Civ.  App.  — ,  178  S.  W. 
956;  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S. 
571,  577,  59  L.  ed.  364,  369,  35  Sup.  Ct. 
Rep.  167,  7  N.  C.  C.  A.  570;  Hotel  Bond 
Co's  Appeal,  89  Conn.  143,  93  Atl  245. 

Under  the  Federal  employers'  liability 
act,  which  alone  measures  claimant's  right 
to  a  recovery,  the  employer  is  liable  only 
for  negligence,  in  the  absence  of  which  there 
is  no  liability  whatever. 

Second  Employers'  Liability  Cases  (Mon- 
dou  v.  New  York,  N.  H.  &  H.  R.  Co.)  223 
U.  S.  1,  55,  56  L.  ed.  327,  348,  38  L.R.A. 
<N.S.)  44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C. 
A.  875 ;  Michigan  C.  R.  Co.  v.  Vreeland,  227 
U.  S.  59,  66,  67,  57  L.  ed.  417,  419,  420,  33 
Sup.  Ct.  Rep.  192,  Ann.  Cas.  1914C.  176: 
L.R.A.1916A 


St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Hesterly, 
228  U.  S.  702,  704,  57  L.  ed.  1031,  1033,  33 
Sup.  Ct.  Rep.  703 ;  St.  Louis,  S.  F.  &  T.  R. 
Co.  v.  Scale,  229  U.  S.  156,  157,  158,  57  L. 
ed.  1129,  1133,  33  Sup.  Ct.  Rep.  651,  Ann. 
Cas.  191 4C,  156;  North  Carolina  R.  Co.  v. 
Zachary,  232  U.  S.  248,  256,  58  L.  ed.  591, 
594,  34  Sup.  Ct.  Rep.  305,  Ann.  Cas.  1914C, 
159;  Taylor  v.  Taylor,  232  U.  S.  363,  368, 

58  L.   ed.   638,   640,   34   Sup.   Ct.   Rep.   350, 
6  N.  C.  C.  A.  436;  Wabash  R.  Co.  v.  Hayes, 
234  U.  S.  86,  89,  58  L.  ed.   1226,  1230,  34 
Sup.  Ct.  Rep.  729,  6  N.  C.  C.  A.  224;   Em- 
ployers' Liability  Cases  (Howard  v.  Illinois 
C.  R.  Co.)  207  U.  S.  463,  490,  52  L.  ed.  297, 
305,  28  Sup.  Ct.  Rep.  141;  New  York  C.  & 
H.  R.  R.  Co.  v.  Hudson  County,  227  U.  S 
248,  264,  57  L.  ed.  499,  505,  33  Sup.  Ct.  Rep. 
269;   Seaboard  Air  Line  R.  Co.  v.  Horton, 
233   U.   S.  492,   501,   58  L.   ed.   1062,   3068, 
L.R.A.1915C,  1,  34  Sup.  Ct.  Rep.  635,  Ann. 
Cas.  1915B,  475,  8  N.  C.  C.  A.  834;  Toledo, 
St.  L.  &  W.  R.  Co.  v.  Slavin,  236  U.  S.  454, 
457,   59  L.   ed.  671,  672,   35   Sup.  Ct.   Rep. 
306;  Smith  v.  Industrial  Acci.  Commission, 
26  Cal.  App.  560,  147  Pac.  600. 

Mr.  E.  C.  Aiken,  with  Mr.  Egburt  E. 
Woodbury,  Attorney  General,  for  respond- 
ent: 

The  workmen's  compensation  law  is  not 
unconstitutional. 

State  ex  rel.  Davis-Smith  Co.  v.  Clausen, 
65  Wash.  156,  37  L.R.A.(N.S.)  466,  117  Pac. 
1101,  2  N.  C.  C.  A.  823,  3  N.  C.  C.  A.  599; 
Young  v.  Duncan,  218  Mass.  346,  106  N.  E. 
1  ;  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571, 

59  L.  ed.  364,  35  Sup.  Ct.  Rep.  167,  7  N.  C. 
C.   A.   570;    Cunningham    v.    Northwestern 
Jmprov.   Co.   44  Mont.   180,   119   Pac.   554; 
Memphis  Cotton  Oil  Co.  v.  Tolbert,  —  Tex. 
Civ.  App.  — ,  171  S.  W.  309,  7  N.  C.  C.  A. 
547;  Holden  v.  Hardy,  169  U.  S.  366,  42  L. 
ed.  780,  18  Sup.  Ct.  Rep.  383;  Legal  Tender 
Cases,  12  Wall.  457,  551,  20  L.  ed.  287,  312 ; 
Walker  v.  Sauvinet,  92  U.  S.  90,  23  L.  ed. 
678;    Atchison,   T.  &  S.  F.  R.   Co.  v.  Mat- 
thews, 174  U.  S.  96,  43  L.  ed.  909,  19  Sup. 
Ct.  Rep.  609 ;  Bertholf  v.  O'Reilly,  74  N.  Y. 
509,  30  Am.  Rep.  323;  Fire  Dept.  v.  Noble, 
3    E.    D.    Smith,    440;    Exempt    Firemen's 
Benev.   Fund  v.  Roome,  29  Hun,  391;   Chi- 
cago, R.  I.  &  P.  R.  Co.  v.  Zernecke,  183  U. 
S.  582,  46  L.  ed.  339,  22  Sup.  Ct.  Rep.  229 ; 
Noble  State  Bank  v.  Haskell,  219  U.  S.  104, 
55  L.  ed.  112,  32  L.R.A. (N.S.)  1062,  31  Sup. 
Ct.  Rep.  186,  Ann.  Cas.  191 2A.  487. 

The  act  provides  for  due  process  of  law. 

Standard  Oil  Co.  v.  Missouri,  224  U.  S. 
270,  287,  56  L.  ed.  760,  769,  32  Sup.  Ct.  Rep. 
406,  Ann.  Cas.  191 3D,  936;  Twining  v.  New 
Jersey,  211  U.  S.  78,  110,  53  L.  ed.  97,  110, 
29  Sup.  Ct.  Rep.  14;  Ballard  v.  Hunter,  204 
U.  S.  255,  51  L.  ed.  471,  27  Sup.  Ct.  Rep. 
261;  Davidson  v.  New  Orleans,  96  IT.  S.  !»7, 


JENSEN  v.  SOUTHERN  P.  CO. 


40& 


104,  24  L.  ed.  616,  619;  Public  Clearing 
House  v.  Coyne,  194  U.  S.  497,  48  L.  ed. 
1092,  24  Sup.  Ct.  Rep.  789;  Reetz  v. 
Michigan,  188  U.  S.  505,  47  L.  ed.  563,  23 
Sup.  Ct.  Rep.  390;  Hurtado  v.  California, 
110  U.  S.  516,  28  L.  ed.  232,  4  Sup.  Ot.  Rep. 
Ill,  292. 

The  appellant  lias  waived  the  question  of 
the  constitutionality  of  the  act. 

Musco  v.  United  Surety  Co.  196  N.  Y. 
459,  134  Am.  St.  Rep.  851,  90  N.  E.  171; 
Kustis  v.  Bolles,  150  U.  S.  361,  37  L.  ed. 
1111,  14  Sup.  Ct.  Rep.  131;  Daniels  v. 
Tearney,  102  U.  S.  415,  26  L.  ed.  187; 
Mellen  Lumber  Co.  v.  Industrial  Commis- 
sion, 154  Wis.  114,  ante,  374,  142  N.  W.  187, 
Ann.  Cas.  1915B,  997. 

The  workmen's  compensation  law  was  in- 
tended to  apply  to  the  accident  and  dis- 
ability occurring  to  this  longshoreman. 

Stoll  v.  Pacific  Coast  S.  S.  Co.  205  Fed. 
169;  Chiles  v.  Chesapeake  &  O.  R.  Co.  218 
U.  S.  71,  54  L.  ed.  936,  30  Sup.  Ct.  Rep. 
667,  20  Ann.  Cas.  980;  Cooley  v.  Port  Ward- 
ens, 12  How.  299,  13  L.  ed.  996;  Atlantic 
Transport  Co.  v.  Imbrovek,  234  U.  S.  52, 
58  L.  ed.  1208,  51  L.R.A.(N.S-)  1157,  34 
Sup.  Ct.  Rep.  733. 

The  workmen's  compensation  law  is  not 
in  conflict  with  any  legislation  of  Congress 
over  interstate  commerce,  for  none  has  been 
enacted;  nor  is  it  in  conflict  with  the  juris- 
diction of  the  admiralty  courts,  for  Con- 
gress has  not  yet  made  the  jurisdiction  of 
admiralty  over  torts  on  navigable  waters 
exclusive  of  all  action  by  the  states. 

The  Lottawanna  (Rodd  v.  Heartt)  21 
Wall.  558,  22  L.  ed.  654;  Butler  v.  Boston 
&  S.  S.  S.  Co.  130  U.  S.  527,  32  L.  ed.  1017, 
9  Sup.  Ct.  Rep.  612;  Re  Garnett,  141  U.  S. 
1,  35  L.  ed.  631,  11  Sup.  Ct.  Rep.  840; 
United  States  v.  Devans,  3  Wheat.  336,  4 
L.  ed.  404;  People  v.  Welch,  141  N.  Y.  266, 
24  L.R.A.  117,  38  Am.  St.  Rep.  793,  36  N. 
E.  328;  Manchester  v.  Massachusetts,  139 
U.  S.  240,  35  L.  ed.  159,  11  Sup.  Ct.  Rep. 
559;  McCready  v.  Virginia,  94  U.  S.  39],  24 
L.  ed.  248;  The  Abby  Dodge,  223  U.  S.  166, 
56  L.  ed.  390,  32  Sup.  Ct.  Rep.  310;  Erie 
R.  Co.  v.  Williams,  233  U.  S.  685,  58  L.  ed. 
1155,  51  L.R.A. (N.S.)  1097,  34  Sup.  Ct. 
Rep.  761;  The  Moses  Taylor,  4  Wall.  411, 
18' L.  ed.  397;  The  Hine  v.  Trevor,  4  Wall. 
555,  18  L.  ed.  451;  The  Belfast,  7  Wall.  624, 
19  L.  ed.  266;  The  Glide,  167  U.  S.  606,  42 
L.  ed.  296,  17  Sup.  Ct.  Rep.  930;  The  Cor- 
sair (Barton  v.  Brown)  145  U.  S.  335,  36 
L.  ed.  727,  12  Sup.  Ct.  Rep.  949. 

The  Federal  employers'  liability  law  does 
not  apply  to  the  defendant,  as  the  defend- 
ant, so  far  as  this  case  is  concerned,  is  a 
steamship  company,  and  not  a  railroad  com- 
pany. 
L.R.A.1916A. 


.      Walker  v.  Clyde  S.  S.  Co.  215  N.  Y.  529, 
!  109  N.  E.  604. 

Mr.    Harold    J.    Himnaii    also    for    re- 
spondent. 

Miller,   J.,   delivered  the   opinion   of  the 
court : 

The    claimant's    husband    was    killed    on 
August  15,  1914,  while  employed  in  unload- 
ing the  steamship    El    Oriente,    which    was 
berthed    alongside    a    pier    in    the    Hudson 
river.     When  the  accident  occurred  he  was 
moving  an   electric  truck  upon  a  gangway 
connecting  the  vessel  with  the  pier.    The  ap- 
pellant, a  corporation  of  the  state  of  Ken- 
tucky, is  a  common  carrier  by  railroad.     It 
also   owned   and   operated    said    steamship, 
which  plied  between  New  York  and  Galves- 
ton,   Texas.     It  does  not  appear    that    the 
steamship  was  in  any  way  operated  in  con- 
nection with  a  line  of  railroad,  and  in  its 
report  of  the  accident  the  appellant  stated 
its  business  to  be  "transportation  by  steam- 
ships    engaged     solely    in    interstate    com- 
merce."    We  are  required  on  this  appeal,. 
first,    to    construe    the    workmen's    compen- 
sation law    (chapter  67  of  the  Consolidated! 
Laws;  Laws  1914,  chap.  41)   in  so  far  as  it, 
relates  to  this  case;   and,    second,    to    de- 
termine   its    constitutional    validity.      The 
scheme    of    the    statute    is    essentially    and 
fundamentally  one,    by    the    creation   of  an 
state  fund,  to  insure  the  payment  of  a  pre- 
scribed compensation  based  on  earnings,  for- 
disability  or  death  from  accidental  injuries, 
sustained  by  employees  engaged  in  certaim 
enumerated    hazardous    employments.      The- 
state  fund  is  created  from  premiums  paid! 
by  employers  based  on  the  pay  roll,  the  num- 
ber of  employees,    and    the    hazards  of  the 
employment.     The  employer  has  the  option 
of  insuring  with  any  stock  corporation  or 
mutual   association   authorized   to  transact 
such  business,  or  of  furnishing  satisfactory- 
proof  to  the  commission  of  his  own  financial' 
ability  to  pay.     If  he    does    neither,    he    is. 
liable  to  a  penalty  equal  to    the    pro    rata, 
premium  payable  to  the  state  fund  during- 
the  period  of  his  noncompliance,  and  is  sub- 
ject to  a  suit  for  damages    by    the    injured' 
employee,  or  his  legal  representative  in  case 
of  death,  in  which  he  is  deprived  of  the  de- 
fenses of  contributory  negligence,   assumed 
risk,  and  negligence  of  a  fellow  servant.   By 
insuring  in  the  state  fund,  or  by  himself  or 
his  insurance  carrier  paying  the  prescribed 
compensation,  the  employer  is  relieved  from 
further    liability    for   personal   injuries   or 
death     sustained    by    employees.      Compen- 
sation is  to  be  made  without  regard  to  fault 
as  a  cause  of  the  injury,  except  where  it  is 
occasioned  by  the  wilful  intention  of  the  in- 
jured employee  to  bring  about  the  injury 
or  death  of  himself  or  another,  or  results. 


406 


WORKMEN'S  COMPENSATION. 


solely  from  his  intoxication  while  on  duty. 
Compensation  is  not  based  on  the  rule  of 
damages  applied  in  negligence  suits,  but  in 
addition  to  providing  for  medical,  surgical, 
or  other  attendance  or  treatment  and  funer- 
al expenses,  it  is  based  solely  on  loss  of  earn- 
ing power.  Thus,  the  risk  of  accidental  in- 
juries occurring  with  or  without  fault  on 
the  part  either  of  employee  or  employer  is 
shared  by  both,  and  the  burden  of  making 
compensation  is  distributed  over  all  the 
enumerated  hazardous  employments  in  pro- 
portion to  the  risks  involved.  So  much  for 
the  general  outline  of  the  scheme,  against 
whose  justice  or  economic  soundness  nothing 
that  occurs  to  me  can  be  said. 

The  particular  provisions  requiring  con- 
struction are  the  following: 

"Sec.  2.  Application. — Compensation  pro- 
vided for  in  this  chapter  shall  be  payable  for 
injuries  sustained  or  death  incurred  by  em- 
ployees engaged  in  the  following  hazardous 
•employments:  .  .  . 

"  'Group  8.  The  operation,  within  or  with- 
out the  state,  including  repair,  of  vessels 
other  than  vessels  of  other  states  or  coun- 
tries used  in  interstate  or  foreign  commerce, 
when  operated  or  repaired  by  the  company. 

"  'Group  10.  Longshore  work,  including 
the  loading  or  unloading  of  cargoes  or  parts 
of  cargoes  of  grain,  coal,  ore,  freight, 
general  merchandise,  lumber  or  other 
products  or  materials,  or  moving  or  hand- 
ling the  same  on  any  dock,  platform  or 
place,  or  in  any  warehouse  or  other  place  of 
storage.'  " 

"Sec.  114.  Interstate  commerce. — The  pro- 
visions of  this  chapter  shall  apply  to  em- 
ployers and  employees  engaged  in  intrastate, 
and  also  in  interstate  or  foreign  commerce, 
for  when  a  rule  of  liability  or  method  of 
compensation  has  been  or  may  be  established 
by  the  Congress  of  the  United  States,  only 
'to  the  extent  that  their  mutual  connection 
with  intrastate  work  may  and  shall  be  clear- 
ly separable  and  distinguishable  from  inter- 
state or  foreign  commerce,  except  that  such 
employer  and  his  employees  working  only  in 
this  state  may,  subject  to  the  approval  and 
in  the  manner  provided  by  the  Commission, 
and  so  far  as  not  forbidden  by  any  act  of 
Congress,  accept  and  become  bound  by  the 
provisions  of  this  chapter  in  like  manner 
and  with  the  same  effect  in  all  respects  as 
provided  herein  for  other  employers  and 
their  employees." 

It  is  claimed  that  loading  and  unloading 
are  included  in  "operation,"  and  that  there- 
fore the  case  falls  within  group  8,  which  ex- 
cepts  vessels  of  other  states  or  countries 
used  in  interstate  or  foreign  commerce,  but 
the  specific  enumeration  of  longshore  work 
L.R.A.1916A. 


in  group  10  excludes  such  work  from  the 
other  group. 

It  is  next  claimed  that  the  statute  was 
not  intended  to  apply  to  employment  in 
interstate  or  foreign  commerce,  and  that  in 
case  of  doubt  that  construction  should  be 
adopted,  for  otherwise  it  would  offend 
against  the  commerce  clause  of  the  Federal 
Constitution  by  imposing  a  burden  upon 
such  commerce.  The  latter  claim  will  be 
noticed  first.  The  statute  does  not  purport 
directly  to  regulate  or  impose  a  burden 
upon  commerce,  but  merely  undertakes  to 
regulate  the  relations  between  employers 
and  employees  in  this  state.  Such  regu- 
lation may,  and  no  doubt  does,  indirectly  af- 
fect commerce,  but  to  the  extent  that  it 
may  affect  interstate  or  foreign  commerce 
it  is  plainly  within  the  jurisdiction  of  the 
state,  until  Congress  by  entering  the  field 
excludes  state  action.  Sherwood  v.  Ailing, 
93  U.  S.  99,  23  L.  ed.  819 ;  Morgan's  L.  &  T. 
R.  &  S.  S.  Co.  v.  Board  of  Health,  118  U.  S. 
455,  30  L.  ed.  237,  6  Sup.  Ct.  Rep.  1114; 
Reid  v.  Colorado,  187  U.  S.  137,  47  L.  ed. 
108,  23  Sup.  Ct.  Rep.  92;  Minnesota  Rate 
Cases  (Simpson  v.  Shepard)  230  U.  S.  352, 
57  L.  ed.  1511,  48  L.R.A.(N.S.)  1151,  33 
Sup.  Ct.  Rep.  729;  Erie  R.  Co.  v.  Williams, 
233  U.  S.  685,  58  L.  ed.  1155,  51  L.R.A. 
(N.S.)  1097,  34  Sup.  Ct.  Rep.  761. 

Literally  construed,  §  114  makes  the  stat- 
ute apply  only  to  intrastate  work,  either 
done  by  itself  or  in  connection  with,  but 
clearly  separable  and  distinguishable  from, 
interstate  or  foreign  commerce.  But, 
though  the  section  is  awkwardly  phrased,  it 
is  manifest  that  a  broader  application  was 
intended,  else  the  clause,  "for  whom  a  rule 
of  liability  or  method  of  compensation  has 
been  or  may  be  established  by  the  Congress 
of  the  United  States,"  is  meaningless.  The 
legislature  evidently  intended  to  regulate,  as 
far  as  it  had  the  power,  all  employments 
within  the  state  of  the  kinds  enumerated. 
The  earlier  sections  are  in  terms  of  general 
application,  and  §  114,  which  is  headed 
"Interstate  commerce,"  is  one  of  limitation, 
not  of  definition.  Its  obvious  purpose  was  to 
guard  against  a  construction  violative  of  the 
Constitution  of  the  United  States,  and  so 
it  provided  that  the  act  should  apply  to 
interstate  or  foreign  commerce,  "for  whom 
a  rule  of  liability  or  method  of  compensa- 
tion has  been  or  may  be  established  by  the 
Congress  of  the  United  States,"  only  to  the 
extent  that  intrastate  work  affected  may  or 
shall  be  clearly  separable  or  distinguishable 
therefrom.  In  other  words,  the  legislature 
said  that  it  did  not  intend  to  enter  any  field 
from  which  it  had  been  or  should  be  ex- 
cluded by  the  action  of  the  Congress  of  the 
United  States.  But  it  is  said  that  Congress 
may  at  any  time  regulate  employments  in 


JENSEN  v.  SOUTHERN  P.  CO. 


407 


interstate  or  foreign  commerce,  and  that  the 
case  is  one  in  which  a  rule  "may  be  estab- 
lished," etc.  Again,  the  spirit,  not  the 
letter,  must  control.  If  it  had  been  intend- 
ed to  confine  the  application  of  the  act  to 
intrastate  work,  the  legislature  would  doubt- 
less have  said  so  in  a  sentence.  The  words 
"may  be"  should  be  construed  in  the  sense 
of  "shall  be." 

One  other  question  in  respect  of  the  appli- 
cation of  the  act  remains  to  be  considered. 
It  is  said  that  the  appellant  is  a  carrier  by 
railroad,  and  that  therefore  the  Federal  em- 
ployers' liability  act  of  April  22,  3908  (35 
Stat.  at  L.  65,  chap.  149;  Comp.  Stat.  1913, 
§  8657 ) ,  prescribes  the  rule  governing  the 
•employment  in  which  the  deceased  was  en- 
gaged. As  far  as  this  case  is  concerned  the 
appellant  is  a  carrier  by  water.  Its  busi- 
ness is  transportation  by  steamships,  which, 
as  far  as  appears,  may  not,  even  indirectly, 
be  related  to  transportation  by  railroad, 
certainly  not  by  any  particular  line  of  rail- 
road. It  is  significant  that  the  earlier 
Federal  statute  of  June  11,  1906,  chap.  3073 
(34  Stat.  at  L.  232),  applied  to  "every  com- 
mon carrier"  engaged  in  interstate  or 
foreign  commerce,  whilst  the  present  act  ap- 
plies only  to  carriers  by  railroad.  There  is 
nothing  in  the  act  indicative  of  a  purpose  to 
apply  it  to  carriage  by  water,  if  it  happen 
to  be  conducted  by  a  railroad  corporation, 
and  not  otherwise, — to  apply  one  rule  of  lia- 
bility to  transportation  by  a  steamship  line 
if  owned  and  operated  by  a  railroad  corpo- 
ration, and  a  different  rule  to  precisely 
similar  transportation  not  thus  controlled. 
The  Federal  act  provides  a.  rule  of  liability 
of  carriers  by  railroad  for  injury  or  death 
"''resulting  in  whole  or  in  part  ...  by 
reason  of  any  defect  or  insufficiency,  due  to 
its  negligence,  in  its  cars,  engines,  ap- 
pliances, machinery,  track,  roadbed,  works, 
boats,  wharves  or  other  equipment." 

The  words  "boats"  and  "wharves"  may  be 
given  due  effect  by  applying  them  to  ad- 
juncts or  auxiliaries  to  transportation  by 
railroad. 

Our  conclusion,  therefore,  is  that  the  em- 
ployment in  which  the  deceased  was  engaged 
was  not  governed  by  the  Federal  statute, 
that  the  workmen's  compensation  act  ap- 
plied to  it,  and  that  the  latter  act  is  not 
violative  of  the  Federal  Constitution  for 
attempting  directly  to  regulate  or  impose  a 
tax  or  burden  on  interstate  or  foreign  com- 
merce. We  now  come  to  perhaps  the  most 
important  question  in  the  case:  Does  the 
act  violate  the  14th  Amendment  to  the 
Constitution  of  the  United  States  for  taking 
property  without  due  process  of  law? 

Much  reliance  is  placed  on  the  decision 
of  this  court  in  Ives  v.  South  Buffalo  R.  Co. 
201  N.  Y.  271,  294,  34  L.R.A.(N.S.)  162,  94 
L.R.A.1916A. 


N.  E.  431,  Ann.  Cas.  1912B,  156,  1  N.  C.  C. 
A.  517.  In  that  case  Judge  Werner,  refer- 
ring to  the  appeal  on  economic  and  socio- 
logic  grounds,  and  speaking  for  the  court, 
said:  "We  have  already  admitted  the 
strength  of  this  appeal  to  a  recognized  and 
widely  prevalent  sentiment,  but  we  think 
it  is  an  appeal  which  must  be  made  to  the 
people,  and  not  to  the  courts." 

That  decision  was  made  in  March,  1911. 
Following  that  suggestion,  the  legislature 
provided  in  the  orderly  way  prescribed  by 
the  Constitution  for  the  submission  to  the 
people  of  a  proposed  constitutional  amend- 
ment, and  in  due  time  that  amendment  was 
adopted  on  November  4,  1913,  and  became  § 
19,  art.  1,  of  our  state  Constitution.  It  is 
unnecessary  to  set  that  amendment  forth  in 
extenso,  but  it  suffices  to  say  that  so  far  as 
the  due  process  clause  or  any  other  pro- 
vision of  our  state  Constitution  is  con- 
cerned, the  amendment  amply  sustains  the 
act.  However,  it  is  urged  that  the  reasons 
which  constrained  the  court  to  declare  the 
act  involved  in  the  Ives  Case  unconstitution- 
al are  equally  cogent  when  applied  to  the 
14th  Amendment.  In  the  first  place  it  is  to 
be  observed  that  the  two  acts  are  essential- 
ly and  fundamentally  different.  That  in- 
volved in  the  Ives  Case  made  the  employer 
liable  in  a  suit  for  damages  though  without 
even  imputable  fault,  and  regardless  of  the 
fault  of  the  injured  employee  short  of  seri- 
ous and  wilful  misconduct.  This  act  pro- 
tects both  employer  and  employee,  the  form- 
er from  wasteful  suits  and  extravagant 
verdicts,  the  latter  from  the  expense,  un- 
certainties, and  delays  of  litigation  in  all 
cases,  and  from  the  certainty  of  defeat  if 
unable  to  establish  a  case  of  actionable 
negligence.  Both  acts  are  said  to  have  been 
based  on  the  proposition  that  the  risk  of  ac- 
cidental injuries  in  a  hazardous  employment 
should  be  borne  by  the  business,  and  that 
loss  should  not  fall  on  the  injured  employee 
and  his  dependents,  who  are  unable  to  bear 
it  or  to  protect  themselves  against  it.  That 
act  made  no  attempt  to  distribute  the  bur- 
den, but  subjected  the  employer  to  a  suit 
for  damages.  This  act  does  in  fact,  as  well 
as  in  theory,  distribute  the  burden  equitably 
over  the  industries  affected.  It  allows  com- 
pensation only  for  loss  of  earning  power,  but 
by  the  creation  of  a  state  insurance  fund, 
or  by  the  substitute  methods  provided,  it  In- 
sures the  prompt  receipt  by  the  injured  em- 
ployee or  his  dependents  of  a  certain  sum 
undiminished  by  the  expenses  of  litigation. 
The  two  acts  are  therefore  so  plainly  dis- 
similar that  the  decision  in  the  Ives  Case 
is  not  controlling  in  this. 

Moreover,  upon  the  question  whether  an 
act  offends  against  the  Constitution  of  the 
United  States  the  decisions  of  the  United 


408 


WORKMEN'S  COMPENSATION. 


States  Supreme  Court  are  controlling.  The  . 
only  one  of  the  numerous  workmen's  com-  | 
pensation  acts  which  appears  to  have  been 
directly  passed  on  by  the  United  States  Su- 
preme Court  is  the  act  of  Ohio,  which  con- 
tained an  optional  clause.  Jeffrey  Mfg.  Co. 
v.  Blagg,  235  U.  S.  571,  59  L.  ed.  364,  35 
Sup.  Ct.  Rep.  167,  7  N.  C.  C.  A.  570.  The 
single  question  decided  in  that  case  was  that 
limiting  the  application  of  the  act  to  shops 
with  five  or  more  employees  did  not  result 
in  arbitrary  and  unreasonable  classification. 
This  a,ct  is  compulsory.  The  employer  is 
subjected  to  a  penalty  for  not  adopting 
one  of  the  three  methods  of  insurance  al- 
lowed him,  and  the  employee  has  no  choice 
at  all,  except  possibly  as  to  whether  he  will 
enter  one  of  the  classified  employments. 
However,  except  for  a  feature  presently  to 
be  considered,  the  decision  in  Noble  State 
Bank  v.  Haskell,  219  U.  S.  104,  55  L.  ed  112, 
32  L.R.A.(N.S.)  1062,  31  Sup.  Ct.  Rep.  186, 
Ann.  Cas.  1912A,  487,  is  decisive.  Indeed, 
upon  close  analysis  it  will  appear  that  the 
taking  justified  in  that  case  as  a  proper 
exercise  of  the  police  power  was  no  more  in 
the  public  interest  than  that  involved  in 
this  case,  and  that  the  mutual  benefits  to 
the  parties  immediately  concerned  were  not 
as  direct.  In  that  case  an  act  of  the  state 
of  Oklahoma  requiring  .every  bank  existing 
under  the  state  laws  to  pay  an  assessment 
based  on  average  daily  deposits  into  a 
guaranty  fund  to  secure  the  full  repayment 
of  deposits  in  case  any  such  bank  became 
insolvent  was  sustained,  not  merely  under 
the  reserve  power  of  the  state  to  alter  or 
repeal  charters,  but  as  a  proper  exercise  of 
the  police  power.  Solvent  banks  were  thus 
required  to  pay  money  into  a  fund  for  the 
direct  benefit  of  others,  the  banks  benefit- 
ing only  indirectly  from  the  supposed  bene- 
fit to  commerce  and  the  greater  stability  of 
banking.  In  this  case  the  mutual  benefits 
are  direct.  Granted  that  employers  are 
compelled  to  insure,  and  that  there  is  in 
that  sense  a  taking.  They  insure  themselves 
and  their  employees  from  loss,  not  others. 
The  payment  of  the  required  premiums  ex- 
empts them  from  further  liability.  The 
theoretical  taking  no  doubt  disappears  in 
practical  experience.  As  a  matter  of  fact 
every  industrial  concern,  except  the  very 
large  ones  who  insure  themselves,  has  for 
some  time  been  forced  by  conditions,  not  by 
law,  to  carry  accident  indemnity  insurance. 
A  relatively  small  part  of  the  sums  thus 
paid  actually  reached  injured  workmen  or 
their  dependents.  With  the  economic  savin j 
of  the  present  scheme,  insurance  in  the  long 
run  should  certainly  be  as  cheap  as  under 
the  old  wasteful  plan,  and  the  families  of  all 
injured  workmen,  not  a  part  only,  will  re- 
ceive some  compensation  for  the  loss  of 
L.R.A.1916A. 


earning  power  of  the  wage  earner.  We 
should  consider  practical  experience,  as  well 
as  theory,  in  deciding  whether  a  given  plan 
in  fact  constitutes  a  taking  of  property  in 
violation  of  the  Constitution.  A  compulsory 
scheme  of  insurance  to  secure  injured  work- 
men in  hazardous  employments  and  their  de- 
pendents from  becoming  objects  of  charity 
certainly  promotes  the  public  welfare  aa 
directly  as  does  an  insurance  of  bank  de- 
positors from  loss. 

But  for  the  matter  now  to  be  considered 
we  need  not  look  farther  for  a  case  control- 
ling upon  us  and  in  principle  decisive  of 
this.  Whilst  the  Noble  State  Bank  Case 
was  referred  to  in  the  Ives  Case,  it  was  not 
controlling,  for  the  reason  that  the  state 
Constitution  was  involved,  and  it  was  not  in 
point  as  an  authority  because  of  the  es- 
sential differences  in  the  act  then  before  the 
court,  already  pointed  out. 

A  point  was  made  on  oral  argument  that 
the  act  was  unconstitutional  for  depriving 
an  employee  injured  by  negligence  imputable 
to  the  employer  of  a  right  of  action  for  the 
wrong.  Of  course,  the  employer  cannot  be 
heard  to  urge  the  grievance  of  the  employee 
(Jeffrey  Mfg.  Co.  v.  Blagg,  supra),  but  ex- 
emption from  further  liability  upon  paying 
the  required  premium  into  the  state  fund  is 
an  essential  element  of  the  scheme,  and  if 
the  act  be  unconstitutional  as  to  the  em- 
ployee the  employer  would  be  deprived  of 
that  exemption,  and  thus  would  be  directly 
affected  by  the  unconstitutionally  of  the 
act  in  that  respect.  It  is  not  accurate  to 
say  that  the  employee  is  deprived  of  all 
remedy  for  a  wrongful  injury.  He  is  given 
a  remedy.  To  be  sure,  the  compensation  or 
recovery  is  limited,  and  that  in  a  sense  may 
possibly  constitute  a  taking;  but,  if  so,  it  is- 
his  contribution  to  an  insurance  scheme  de- 
signed for  his  benefit,  and  may  be  justified, 
on  precisely  the  same  grounds  as.  the  contri- 
bution exacted  of  the  employer  has  been. 
When  he  enters  into  the  contract  of  employ- 
ment, he  is  now  assured  of  a  definite  com- 
pensation for  an  accidental  injury  occurring 
with  or  without  fault  imputable  to  the  em- 
ployer, and  is  afforded  a  remedy  which  is 
prompt,  certain,  and  inexpensive.  In  return 
for  those  benefits  he  is  required  to  give  up 
the  doubtful  privilege  of  having  a  jury 
assess  his  damages,  a  considerable  part  of 
which,  if  recovered  at  all  after  long  delay, 
must  go  to  pay  expenses  and  lawyers'  fees. 

Moreover,  the  act  does  not  deal  with  in- 
tentional wrongs,  but  only  with  accidental 
injuries,  and  no  account  is  taken  of  the  pres- 
ence or  absence  of  the  negligence  attributa- 
ble to  the  employer.  In  the  way  modern 
undertakings  are  conducted  it  is  rarely  pos- 
sible to  trace  personal  fault  to  the  employer, 
but  he  has  been  held  lia,ble  for  wrongs  of 


JENSEN  v.  SOUTHERN  P.  CO. 


409 


others  under  the  doctrine  of  respondeat  su- 
perior. That  doctrine  has  been  developed  by 
the  courts  to  make  the  principal  accountable 
for  the  conduct  of  his  affairs,  though  it  must 
be  remembered  that  it  does  not  rest  on  the 
doctrine  of  agency.  No  one  has  a  vested 
right  under  the  Constitution  to  the  main- 
tenance of  that  common-law  doctrine,  which 
undoubtedly  may  be  extended  or  curtailed 
by  the  legislature.  No  one  doubts  that  the 
doctrine  of  assumption  of  risk  and  the  fel- 
low servant  doctrine,  also  developed  by  the 
courts  tinder  different  conditions  than  those 
now  prevailing,  may  be  limited  or  entirely 
abrogated  by  the  legislature.  Acts  having 
that  effect  have  been  sustained  by  repeated 
decisions  of  this  court.  The  power  to  limit 
or  take  away  must  also  involve  the  power  to 
extend.  At  the  common  law  the  servant  was 
held  to  assume  by  implied  contract  the  ordi- 
nary risks  of  the  employment,  including  the 
risk  of  a  fellow  servant's  negligence,  and 
even  of  negligence  imputable  to  the  master 
if  the  danger  was  obvious,  or  with  knowl- 
edge of  it  the  servant  voluntarily  continued 
in  the  employment.  It  would  not  be  a  great 
extension  of  that  doctrine  for  the  legislature 
to  provide  that  the  employee  should  assume 
the  risk  of  all  accidental  injuries,  and  if 
that  can  be  done,  it  is  certainly  competent 
for  the  legislature  to  provide  by  the  creation 
of  an  insurance  fund  for  a  limited  compen- 
sation to  the  employee  for  all  accidental  in- 
juries, regardless  of  whether  there  was  a 
cause  of  action  for  them  at  common  law. 

This  subject  should  be  viewed  in  the  light 
of  modern  conditions,  not  those  under  which 
the  common-law  doctrines  were  developed. 
With  the  change  in  industrial  conditions,  an 
opinion  has  gradually  developed  which  al- 
most universally  favors  a  more  just  and 
economical  system  of  providing  compen- 


sation for  accidental  injuries  to  employees 
as  a  substitute  for  wasteful  and  protracted 
damage  suits,  usually  unjust  in  their  re- 
sults either  to  the  employer  or  the  employee, 
and  sometimes  to  both.  Surely  it  is  compe- 
tent for  the  state,  in  the  promotion  of  the 
general  welfare,  to  require  both  employer 
and  employee  to  yield  something  toward  the 
establishment  of  a  principle  and  plan  of 
compensation  for  their  mutual  protection 
and  advantage.  Any  plan  devised  by  the 
wit  of  man  may,  in  exceptional  cases,  work 
unjustly,  but  the  act  is  to  be  judged  by  its 
general  plan  and  scope  and  the  general  good 
to  be  promoted  by  it.  Fortunately  the 
courts  have  not  attempted  to  define  the 
limits  of  the  police  power.  Its  elasticity 
makes  progress  possible  under  a  written 
Constitution  guarantying  individual  rights. 
The  question  is  often  one  of  degree.  The  act 
now  before  us  seems  to  be  fundamentally 
fair  to  both  employer  and  employee.  Of 
course,  I  do  not  speak  of  details  which  may 
or  may  not  be  open  to  criticism,  but  which, 
granting  the  validity  of  the  underlying 
principle,  are  plainly  within  the  province  of 
the  legislature.  It  is  not  open  to  the  objec- 
tions found  to  be  fatal  to  the  act  considered 
in  the  Ives  Case.  It  is  plainly  justified 
by  the  amendment  to  our  own  state  Con- 
stitution, and  the  decisions  of  the  United 
States  Supreme  Court,  notably  in  the  Noble 
State  Bank  Case,  make  it  reasonably  certain 
that  it  will  be  found  by  that  court  not  to 
be  violative  of  the  Constitution  of  the  Unit- 
ed States. 

The  order  of  the  Appellate  Division 
should  be  affirmed,  with  costs. 

Willard  Bartlett,  Ch.  J.,  and  Collin, 
Cuddeback,  Cardozo,  and  Seabury,  JJ., 
concur.  Werner,  J.,  not  sitting. 


Annotation — Constitutionality  of  workmen's  compensation  and  industrial 

insurance  statutes. 


As  to  the  application  and  effect  of 
workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to  the  limitation  of  applicability 
of  the  state  compensation  statute  by 
Federal  laws,  see  annotation,  post,  46i. 
In  general. 

The  constitutionality  of  workmen's 
compensation  and  industrial  insurance 
statutes  was  discussed  in  annotations  to 
Ives  v.  South  Buffalo  R.  Co.  34  L.R.A. 
(N.S.)  162,  and  State  ex  rel.  Davis- 
Smith  Co.  v.  Clausen,  34  L.R.A. (N.S.) 
466;  but  as  those  cases  were  pioneer 
cases  and  there  was  little  or  no  case  law 
upon  the  subject  at  the  time  those  anno- 
tations were  prepared,  the  cases  will  be 
L.R.A.1916A. 


included  in  this  annotation.  Moreover, 
a  consideration  of  those  cases  in  connec- 
tion with  the  more  recent  cases  is  neces- 
sary to  show  the  present  status  of  the 
case  law  on  this  subject. 

From  the  standpoint  of  the  constitu- 
tionality of  these  statutes  they  readily 
fall  into  two  distinct  groups:  (1)  those 
that  are  optional  and  afford  an  oppor- 
tunity to  the  parties  to  elect  whether  or 
not  they  will  be  bound  by  them;  (2) 
those  that  are  compulsory  and  furnish 
no  such  election.  The  great  majority  of 
the  statutes  are  optional  in  character, 
but  both  of  the  New  York  statutes  and 
those  of  Washington,  California,  Mon- 
tana, and  Ohio  are  compulsory  in  char- 


410 


WORKMEN'S  COMPENSATION. 


acter.  In  this  connection  attention  is 
called  to  the  fact  that  in  New  York, 
California,  and  Ohio,  constitutional 
amendments  have  been  adopted  which 
permit,  so  far  as  the  state  Constitution 
is  concerned,  the  passage  by  the  legis- 
lature of  compulsory  compensation  acts. 

So  far  as  the  optional  statutes  are 
concerned,  although  their  invalidity  has 
been  alleged  in  many  cases,  it  is  suffi- 
cient to  say  that  the  courts  have  in- 
variably taken  the  position  that  the  stat- 
utes, being  optional,  are  constitutional. 
In  one  or  two  cases,  some  minor  pro- 
vision relative  to  the  practice  or  pro- 
cedure under  the  act  has  been  held  in- 
valid, but,  as  a  general  rule,  the  only 
contention  to  which  any  particular 
weight  has  been  given  by  the  court  is 
the  method  taken  by  the  statute  to  com- 
pel the  parties  to  accept  the  terms  there- 
of. Having  decided  that  the  statutes 
are,  in  fact,  optional,  and  afford  a  volun- 
tary election  to  accept  or  reject  them, 
the  entire  problem  is  solved.  It  is  to  be 
noticed  that  the  chief  fault  of  the  stat- 
ute found  invalid  by  the  Kentucky  court 
in  KENTUCKY  STATE  JOURNAL  Co.  v. 
WORKMEN'S  COMPENSATION  BD.  was  that 
the  act  was  not  optional,  but  the  parties 
were  in  fact  coerced  into  accepting  it. 

The  compulsory  statutes  are  of  two 
distinct  kinds :  first,  direct  liability  acts, 
or  those  which  impose  the  duty  upon  the 
employer  to  compensate  his  employees 
for  injuries  actually  received  in  the 
particular  employment;  second,  indus- 
trial insurance  acts,  which  require  the 
employers  to  subscribe  to  a  state  insur- 
ance fund  or  to  take  out  insurance  in 
some  other  way,  and  provide  for  the 
payment  of  compensation  to  injured  em- 
ployees out  of  the  state  fund  or  by  the 
insurer.  The  California  act  presents 
both  the  direct  payment  and  the  indus- 
trial insurance  features. 

The  chief  objection  raised  against 
compulsory  acts  is  that  they  violate  the 
due  process  and  equal  protection  clauses 
of  the  Constitution,  both  state  and  Fed- 
eral. This  objection  will  be  discussed  in 
the  subdivision  of  the  note  entitled, 
"Due  process  and  equal  protection  of  the 
law." 

In  regard  to  the  subdivisions  of  the 
note,  it  may  be  said  that  they  are  not 
mutually  exclusive.  Many  objections 
embrace  two  or  more  of  the  points  indi- 
cated in  the  headings,  and  these  head- 
ings have  been  inserted  rather  for  the 
convenience  of  the  reader  than  for  mak- 
ing logical  subdivisions  of  the  note. 

A  number  of  decisions  have  asserted 
in  general  terms  that  the  statute  in  ques- 
L.R.A.1916A. 


tion  was  constitutional,  merely  upon  the 
authority  of  a  prior  case,  and  without 
any  discussion  of  the  question,  or  add- 
ing anything  of  value.  These  cases  will 
be  grouped  at  this  point  in  the  anno- 
tation, since  it  is  impossible  to  tell  what 
contentions  were  made  in  them. 

Thus,  following  Mathison  v.  Minne- 
apolis Street  R.  Co.  (1914)  126  Minn.  28, 
L.R.A.— ,  — ,  148  N.  W.  71,  5  N.  C.  C.  A. 
871,  infra,  the  Minnesota  act  was  held 
constitutional  in  State  ex  rel.  Nelson- 
Spelliscy  Co.  v.  District  Ct:  (1914)  128 
Minn.  221,  150  N.  W.  623;  Johnson  v. 
Nelson  (1914)  128  Minn.  158,  150  N.  W. 
620.  So,  following  Deibeikis  v.  Link- 
Belt  Co.  (1914)  261  HI.  454,  104  N.  E. 
211,  5  N.  C.  C.  A.  401,  Ann.  Cas.  1915A, 
241,  infra,  the  Illinois  act  was  held  con- 
stitutional in  Dietz  v.  Big  Muddy  Coal  & 
I.  Co.  (1914)  263  HI.  480,  105  N.  E.  289, 
5  N.  C.  C.  A.  419;  Crooks  v.  Tazewell 
Coal  Co.  (1914)  263  111.  343,  105  N.  E. 
13,  5  N.  C.  C.  A.  410,  Ann.  Cas.  1915C, 
304.  And  following  State  ex  rel.  Davis- 
Smith  Co.  v.  Clausen  (1911)  65  Wash. 
156,  37  L.R.A.(N.S.)  466,  117  Pac.  1101, 
2  N.  C.  C.  A.  823,  3  N.  C.  C.  A.  599, 
infra,  the  Washington  compensation  act 
was  held  valid  in  Stoll  v.  Pacific  Coast 
S.  S.  Co.  (1913)  205  Fed.  169,  3  N.  C.  C. 
A.  606;  State  ex  rel.  Pratt  v.  Seattle 
(1913)  73  Wash.  396,  132  Pac.  45;  State 
v.  Mountain  Timber  Co.  (1913)  75  Wash. 
581,  L.R.A.— ,  — ,  135  Pac.  645,  4  N.  C. 
C.  A.  811.  And  following  the  decision 
in  State  ex  rel.  Yaple  v.  Creamer  (1911) 
85  Ohio  St.  349,  39  L.R.A.(N.S.)  694, 
97  N.  E.  602,  1  N.  C.  C.  A.  30,  infra, 
the  Ohio  statute  was  held  constitutional 
in  Jeffrey  Mfg.  Co.  v.  Blagg  (1914)  90 
Ohio  St.  376,  108  N.  E.  465. 

In  reference  to  a  number  of  objections 
to  the  validity  of  the  Kansas  act,  the 
court  said  in  a  very  general  manner  that 
the  objections  had  been  met  and  dis- 
cussed in  a  number  of  decisions  in  other 
jurisdictions,  and  that  it  was  sufficient 
to  say  that  the  statute,  being  optional, 
was  not  open  to  the  objections  raised. 
Shade  v.  Ash  Grove  Lime  &  Portland 
Cement  Co.  (1914)  93  Kan.  257,  144  Pac. 
249. 

In  Przykopenski  v.  Citizens'  Coal  Min. 
Co.  (1915)  —  IU.  — ,  110  N.  E.  336,  the 
Illinois  supreme  court  reversed  a  judg- 
ment of  the  lower  court,  which  was 
based  upon  the  theory  that  the  Illinois 
act  was  unconstitutional. 

The  supreme  court  of  California,  in 
deciding  a  case  arising  under  the  act  of 
1911,  refused  to  consider  the  validity 
of  the  compensation  features  of  the  act 
of  1913,  merely  because  the  Commission 


CONSTITUTIONALITY  OF  STATUTE. 


411 


provided  for  by  the  latter  act  was  em- 
powered to  carry  out  the  provisions  of 
the  former  act  as  to  any  case  arising 
prior  to  the  effective  date  of  the  later 
act,  where  the  provisions  of  such  later 
act  relative  to  the  powers  and  duties  of 
the  Commission  were  not  attacked,  and 
such  provision  might  be  upheld  even  if 
the  compensation  features  of  the  act 
were  bad.  Great  Western  Power  Co.  v. 
Pillsbury  (1915)  -  -  Gal.  — ,  149  Pac. 
35. 

The  insurance  features  of  the  Iowa 
act,  under  different  circumstances,  were 
held  lawful  by  several  decisions  of  the 
Iowa  supreme  court  prior  to  their  incor- 
poration in  the  Iowa  statute.  Hawkins 
v.  Bleakley  (1914)  220  Fed.  378.  The 
court  said :  "The  Chicago,  Burlington, 
&  Quincy  Railroad  Company  for  years 
had  a  scheme  of  insurance  which,  if  re- 
sorted to  by  the  injured  employee,  was 
a  bar  to  a  recovery  by  an  action  in  court. 
Finally  that  scheme  was  condemned  by 
Iowa  legislation,  and  the  statute  pro- 
hibiting it  was  sustained  by  the  United 
States  Supreme  Court,  affirming  the 
Iowa  supreme  court,  in  the  McGuire 
Case  (1911)  219  U.  S.  549,  55  L.  ed.  328, 
31  Sup.  Ct.  Rep.  259,  hereinbefore  re- 
ferred to.  The  insurance  scheme  was 
held  lawful  by  the  Iowa  supreme  court 
in  a  number  of  cases  prior  to  the  adop- 
tion of  the  legislation  referred  to,  and 
now  we  have  additional  legislation  al- 
lowing the  very  thing  condemned  by  the 
prior  legislation.  And  so  it  is  that  no 
constitutional  objection  can  be  made  to 
the  latest  legislation." 

In  KENTUCKY  STATE  JOURNAL  Co.  v. 
WORKMEN'S  COMPENSATION  BD.  the 
court  said:  "The  counsel  for  appellant 
fiercely  assail  the  purpose  and  operation 
of  this  act  for  many  other  reasons. 
They  complain  of  the  meager  compensa- 
tion it  gives  to  the  injured  employee ; 
that  it  deprives  him  of  a  jury  trial; 
that  employers  are  compelled  to  pay  into 
this  fund  $1.25  as  a  premium  on  each 
$100  pay  roll,  and  as  a  result  only 
employers  doing  an  extrahazardous  busi- 
ness will  take  under  it;  that  corpora- 
tions whose  operations  are  not  extra- 
hazardous  will  carry  their  own  risks  by 
the  aid  of  indemnity  companies,  and  by 
reason  of  which  this  compensation  fund 
is  liable  to  suffer  depletion;  and  if  an 
employee  receives  an  injury,  his  com- 
pensation is  doubtful.  It  is  also  claimed 
that  as  this  is  a  common  fund,  kept  up 
by  the  contributions  of  employers,  that 
they  will  grow  careless  in  selecting 
their  machinery,  as  well  as  in  their 
operations,  and  that  the  lives  and  limbs 
L.R.A.1936A. 


I  of  the  employees  will  suffer  greater  risks 
,  and  injuries.  A  sufficient  answer  to  all 
this  is,  that  these  are  matters  addressed 
entirely  to  the  wisdom  of  the  legislature, 
and  can  be  regulated  as  necessities  may 
require." 

As  is  stated  above,  minor  provisions 
of  several  of  the  statutes  have  been  held 
invalid,  but  these  provisions  are  separ- 
able from  the  remainder  of  the  act,  and 
their  invalidity  does  not  affect  the  va- 
lidity of  the  act  as  a  whole. 

The  provision  of  §  9,  clause  F,  of  the 
Illinois  act  1913,  providing  that  the  su- 
preme court  shall  have  power  to  review 
questions  of  law  by  certiorari,  manda- 
mus, or  any  other  method  permissible 
under  the  rules  and  practice  of  said 
court  or  the  laws  of  the  state,  is  invalid 
as  violating  article  6,  §  2,  of  the  Consti- 
tution, which  gives  the  supreme  court 
original  jurisdiction  "in  cases  relating 
to  the  revenue,  in  mandamus  and  habeas 
corpus,  and  appellate  jurisdiction  in  all 
other  cases."  Courter  v.  Simpson 
Constr.  Co.  (1914)  264  HI.  488, 106  N.  E. 
350,  6  N.  C.  C.  A.  548. 

Section  75,  subdivision  6,  of  the  Cali- 
fornia act,  which  purports  to  give  the 
Commission  power  "to  regulate  and  pre- 
scribe the  nature  and  extent  of  the  proof 
and  evidence"  required  in  proceedings 
under  the  act,  is  invalid  as  being  in  ex- 
cess of  the  authority  given  by  §  21,  arti- 
cle 22,  of  the  state  Constitution,  which 
is  the  only  authority  for  the  provisions 
authorizing  such  matters  to  be  deter- 
mined by  the  Commission  instead  of  by 
the  court.  Englebretson  v.  Industrial 
Acci.  Commission  (1915)  —  Cal.  — ,  151 
Pac.  421. 

In  Herkey  v.  Agar  Mfg.  Co.  (1915) 
90  Misc.  457, 153  N.  Y.  Supp.  369,  Crane, 
J.,  at  special  term,  said  that  while  it 
was  his  opinion  that  the  statute  could 
not  compel  an  employee  to  accept  of 
its  provisions,  nevertheless  he  would  not 
hold  that  the  act  was  inoperative  as  to 
an  employee  electing  to  proceed  under 
the  common  law,  for  his  decision  might 
be  followed  by  injured  servants  and 
then  overturned  by  the  higher  courts, 
so  that  such  employees  would  have  lost 
forever  all  rights  under  the  compensa- 
tion act,  and  would  also  be  barred  from 
an  action  for  damages. 
—  validity  of  statute  as  affected  by 

title. 

In  a  number  of  cases  it  has  been  con- 
tended that  the  statute  under  discussion 
is  invalid  as  violating  the  constitutional 
provision  that  statutes  shall  not  contain 
more  than  one  subject,  which  is  to  be 


412 


WORKMEN'S  COMPENSATION. 


expressed  in  the  title.  These  conten- 
tions have  been  rejected,  the  court  tak- 
ing the  position  that  this  constitutional 
provision  is  not  to  be  narrowly  or  strict- 
ly construed.  Shade  v.  Ash  Grove  Lime 
&  Portland  Cement  Co.  (1914)  93  Kan. 
257,  144  Pac.  249;  Mackin  v.  Detroit- 
Timkin  Axle  Co.  (1915)  —  Mich.  — ,  153 
N.  W.  49;  Memphis  Cotton  Oil  Co.  v. 
Tolbert  (1914)  —  Tex.  Civ.  App.  — ,  171 
S.  W.  309,  7  N.  C.  C.  A.  547. 

The  New  Jersey  act  is  not  uncon- 
stitutional as  embracing  two  objects 
where  one  only  is  expressed  in  the  title. 
Huyett  v.  Pennsylvania  E.  Co.  (1914) 
86  N.  J.  L.  683,  92  Atl.  58.  The  court 
said  that  the  phrase  "injuries  received 
by  the  employee"  naturally  and  properly 
include  injuries  resulting  in  death. 

The  title  of  the  New  Jersey  compensa- 
tion act  of  1913  is  sufficient  to  express 
the  object  of  legislating  as  to  employees 
of  municipalities.  Allen  v.  Millville 
(1915)  —  N.  J.  L.  — ,  95  Atl.  130. 

But  a  title  to  an  act  providing  com- 
pensation for  accidental  injury  will  not 
cover  a  provision  for  compensation  for 
occupational  disease.  Adams  v.  Acme 
White  Lead  &  Color  Works,  (1914)  182 
Mich.  157,  ante,  283, 148  N.  W.  485,  6  N. 
C.  C.  A.  482. 

The  title  of  the  Washington  act,  indi- 
cating that  the  act  relates  to  compensa- 
tion of  injured  workmen,  is  broad 
enough  to  include  the  abolition  of  negli- 
gence as  a  ground  of  recovery  against 
third  persons,  since  it  indicates  that  the 
act  is  intended  to  furnish  the  only  com- 
pensation to  be  allowed.  Peet  v.  Mills, 
(1913)  76  Wash.  437,  ante,  358,  136  Pac. 
685,  4  N.  C.  C.  A.  786,  Ann.  Gas.  1915D, 
154. 

—  presumption  as  to  election  to   come 
in  under  the   act. 

The  provision  of  the  Michigan  act 
that  an  employee  shall  be  deemed  to 
have  accepted  and  shall  be  subject  to 
the  provisions  of  the  act,  if,  at  the  time 
of  the  accident,  the  employer  charged 
with  such  liability  is  subject  to  the  pro- 
visions of  the  act,  whether  the  employee 
has  actunl  notice  thereof  or  not,  is  not 
unconstitutional  as  coercive,  where  the 
employee  has  the  right  in  the  first  in- 
stance to  give  to  his  employer  notice  in 
writing  that  he  elects  not  to  come  in 
under  the  act.  Mackin  v.  Detroit-Timkin 
Axle  Co.  (1915)  —  Mich.  — ,  153  N.  W. 
49. 

Paragraph  9  of  the  New  Jersey  act  of 
1911,  creating  a  presumption  that,  with 
respect  to  contracts  of  hiring,  made 
after  the  accident  became  effective,  the 
parties  are  acting  under  the  2d  section. 
L.K.A.1916A. 


if  one  or  the  other  does  not  then  or  be- 
fore the  accident  expressly  elect  to  oper- 
ate under  the  first,  is  a  valid  exercise 
of  the  powers  of  the  legislature.  Sexton 
v.  Newark  Dist.  Teleg.  Co.  (1913)  84 
N.  J.  L.  85,  86  Atl.  451,  3  N.  C.  C.  A. 
569.  The  court  said  that  the  matter 
really  came  down  to  a  question  of  pre- 
sumption or  burden  of  proof  which  was 
entirely  within  the  control  of  the  legis- 
lature as  long  as  the  parties  are  left  en- 
tirely free  to  make  whatever  choice  they 
wish. 

The  option  afforded  by  the  Minnesota 
act  is  no  less  voluntary  and  optional 
because  the  parties  are  deemed  to  have 
accepted  the  provisions  unless  they  give 
notice  to  the  contrary,  than  it  would  be 
if  they  were  deemed  not  to  have  ac- 
cepted them  until  they  gave  notice  to 
that  effect.  Mathison  v.  Minneapolis 
Street  E.  Co.  (1914)  126  Minn.  286, 
L.E.A.— ,  — ,  148  N.  W.  71,  5  N.  C.  C.  A. 
871. 

But  in  KENTUCKY  STATE  JOURNAL  Co. 
v.  WORKMEN'S  COMPENSATION  BD.  it  is 
to  be  noted  that  the  court  condemns  the 
provisions  of  the  act  that  an  employee 
shall  be  conclusively  presumed  to  have 
accepted  the  provisions  of  the  act  unless 
he  takes  the  affirmative  steps  of  giving 
notice  to  the  contrary,  this  view  being 
concisely  stated  by  Dorsey,  Special 
Judge,  in  his  opinion  on  the  rehearing: 
"Silence  on  this  subject  should  not  be 
construed  into  acceptance." 

—  who  may  question  validity  of  stat- 
ute. 

Frequently  the  constitutionality  of 
the  statutes  under  discussion  has  been 
questioned  as  to  points  which  do  not  af- 
fect the  party  raising  the  question;  but 
the  court  has  held  that  it  is  only  the 
constitutional  rights  of  the  party  alleg- 
ing the  invalidity  of  the  statute  that  can 
be  protected  in  the  proceeding. 

Thus,  in  Sexton  v.  Newark  Dist. 
Teleg.  Co.  (1913)  (N.  J.)  supra,  the 
court  said:  "Any  consideration  of  the 
constitutional  aspect,  either  of  the  act 
or  of  the  supplement,  must  be  limited 
to  the  question  whether  the  proceedings 
under  review  violate  the  constitutional 
right  of  the  prosecutor.  The  question 
cannot  be  broader  than  that  raised  by 
the  facts.  That  the  act  or  the  supple- 
ment may  or  may  not  deprive  parties  to 
supposititious  cases  of  constitutional 
rights  has  no  bearing  upon  the  present 
case  if  it  appears  that  the  parties  before 
the  court  are  not  deprived  of  constitu- 
tional rights  by  the  proceedings  under 
review." 

An  employer  will  not  be  heard  to  al- 


CONSTITUTIONALITY  OF  STATUTE. 


413 


lege  that  the  constitutional  rights  of  his 
employees  are  infringed. 

Thus,  an  employer  cannot  raise  the 
question  of  unconstitutionality  of  a  stat- 
ute because  his  employees  are  unfairly 
treated.  Hunter  v.  Colfax  Consol.  Coal 
Co.  (1915)  —  Iowa,  — ,  L.R.A.— ,  — ,  154 
N.  W.  1037. 

So,  an  employer  cannot  object  to  the 
discrimination  so  far  as  it  affects  em- 
ployees by  themselves,  which  the  Ohio 
act  makes  as  between  employees  in  shops 
with  five  or  more  employees  and  those 
in  shops  having  a  lesser  number.  Jef- 
frey Mfg.  Co.  v.  Blagg  (1914)  235  U.  S. 
571,  59  L.  ed.  364,  35  Sup.  Ct.  Rep.  169, 
7  N.  C.  C.  A.  570. 

And  an  employer  who  has  not  ac- 
cepted the  provisions  of  the  law,  and 
has  had  a  trial  by  jury  upon  all  the 
issues  in  the  case,  will  not  be  heard  to 
complain  that  others  who  accept  the  pro- 
visions of  the  act  are  denied  trial  by 
jury.  Wheeler  v.  Contoocook  Mills 
Corp.  (1915)  77  N.  H.  551,  94  Atl.  265. 

Nor  can  an  employer  who  has  volun- 
tarily accepted  the  benefit  of  the  work- 
men's compensation  act  defeat  its  opera- 
tion on  the  theory  that  it  deprives  him 
of  due  process  of  law.  Mellen  Lumber 
Co.  v.  Industrial  Commission,  (1913) 
154  Wis.  114,  ante,  374,  142  N.  W.  187, 
Ann.  Cas.  1915B,  997. 

So,  a  claim  by  an  adult  employee  that 
the  Michigan  act  is  unconstitutional  in 
that  it  deprives  the  parent  of  right  of 
action  for  injury  to  his  minor  child  is 
untenable.  Mackin  v.  Detroit-Timkin 
Axle  Co.  (1915)  —  Mich.  — ,  153  N.  W. 
49. 

A  taxpayer  has  no  ground  for  bring- 
ing an  action  to  restrain  the  payment  of 
salaries  to  the  Industrial  Insurance 
Board,  created  by  chap.  50  of  the  Laws 
of  1911,  upon  the  ground  that  such  act 
was  unconstitutional,  where  the  mem- 
bers-of  the  Board  have  many  duties  to 
perform  in  addition  to  the  duties  sought 
to  be  imposed  upon  them  by  the  work- 
men's compensation  act.  Re  Filer  &  S. 
Co.  (1911)  146  Wis.  629,  132  N.  W.  584. 

It  is  interesting  to  note  in  this  con- 
nection that  the  Kentucky  court,  in 
KENTUCKY  STATE  JOURNAL  Co.  v.  WORK- 
MEN'S COMPENSATION  BD.  did  hold  that 
the  Kentucky  act  was  invalid  in  its  en- 
tirety, in  an  action  in  which  only  the  state 
board  and  the  employer  were  parties,  al- 
though  the  unconstitutionality  was  based 
solely  upon  the  infringement  of  the  rights 
of  the  employee  and  of  his  personal  rep- 
resentative or  dependents. 
L.R.A.1916A. 


Abrogation   of   common-law   defenses. 

The  optional  acts,  although  furnishing 
an  opportunity  to  the  parties  to  accept 
or  reject  the  provisions  of  the  act,  never- 
theless attempt  to  compel  them  to  accept 
by  depriving  the  employer  who  refuses 
to  come  in  of  the  defenses  of  assumption 
of  risk,  negligence  of  fellow  servants, 
and  contributory  negligence,  while  re- 
taining them  in  full  force  as  against  the 
employee  who  fails  to  subscribe  to  the 
act.  These  provisions  have  been  uniform- 
ly upheld  by  the  court  upon  the  ground 
that  the  defenses  are  merely  rules  of  law, 
and  it  is  within  the  power  of  the  legis- 
lature to  abolish  them.  Hawkins  v. 
Bleakley  (1914)  220  Fed.  378  (Iowa  stat- 
ute) ;  Hotel  Bond  Go's  Appeal  (1915)  89 
Conn.  143,  93  Atl.  245 ;  Hunter  v.  Colfax 
Consol.  Coal  Co.  (1915)  -  -  Iowa,  — 
L.R.A.— ,  — ,  154  N.  W.  1037;  Hovis  v. 
Cudahy  Ref.  Co.  (1915)  95  Kan.  505, 148 
Pac.  626;  Wheeler  v.  Contoocook  Mills 
Corp.  (1915)  77  N.  H.  551,  94  Atl.  265; 
Sexton  v.  Newark  Dist.  Teleg.  Co.  (1913) 
84  N.  J.  L.  85,  86  Atl.  451,  3  N.  C.  C.  A. 
569 ;  Ives  v.  South  Buffalo  R.  Co.  (1911) 
201  N.  Y.  271,  34  L.R.A.(N.S.)  162,  94 
N.  E.  431,  1  N.  C.  C.  A.  517,  Ann.  Cas. 
1912B,  156;  De  Francesco  v.  Piney  Min. 
Co.  (1915)  —  W.  Va.  — ,  86  S.  E.  77. 

"The  rules  of  law  relating  to  contrib- 
utory negligence  and  assumption  of  the 
risk  and  the  effect  of  negligence  by  a 
fellow  servant  were  established  by  the 
courts,  not  by  the  Constitution,  and  the 
legislature  may  change  them  or  do  away 
with  them  altogether  as  defenses  (as  it 
has  to  some  extent  in  the  employers'  lia- 
bility act),  as  in  its  wisdom,  in  the  exer- 
cise of  powers  intrusted  to  it  by  the  Con- 
stitution, it  deems  will  be  best  for  the 
'good  and  welfare  of  this  common- 
wealth.' "  Opinion  of  Justices  (1911) 
209  Mass.  607,  96  N.  E.  308,  1  N.  C.  C. 
A.  557. 

So,  in  Hawkins  v.  Bleakley  (1914)  220 
Fed.  378,  the  court  said:  "But  it  is 
argued  that  if  the  employer  fails  to  elect 
to  come  within  the  statute  and  have  the 
case  tried  and  determined,  as  heretofore, 
the  employer  cannot  urge  the  defense  of 
assumption  of  risks  by  the  employee  or 
contributory  negligence.  And  yet  each 
of  these  defenses  first  crept  into  the  law 
by  slight  recognition,  and  then  grew  and 
developed  by  judicial  decisions  without 
the  aid  of  legislation.  And  it  cannot  be 
so  that  simply  because  such  became 
recognized  as  the  law  by  judicial  de- 
cisions, they  cannot  be  abridged  or  de- 
nied by  legislation." 

Power  to  abolish  the  defenses  of  con- 
tributory negligence,  assumption  of  risk, 


414 


WORKMEN'S  COMPENSATION. 


and  negligence  of  coemployees,  rests  up- 
on the  principle  that  no  person  has  any 
property  right  or  vested  interest  in  a 
rule  of  law,  and  that  the  legislature  may 
change  such  rules  at  pleasure.  Mathison 
v.  Minneapolis  Street  R.  Co.  (1914)  126 
Minn.  286,  L.R.A.— ,  — ,  148  N.  W.  71, 
5  N.  C.  C.  A.  871. 

Taking  away  the  common-law  defenses 
of  assumption  of  risk,  contributory  neg- 
ligence, and  the  negligence  of  a  fellow 
servant,  and  putting  upon  the  employers 
the  burden  of  proof  as  to  their  negli- 
gence or  lack  of  negligence,  as  a  means 
of  compelling  employers  to  accept  the 
provisions  of  the  Iowa  act,  is  not  unrea- 
sonable coercion.  Hunter  v.  Colfax 
Consol.  Coal  Co.  (1915)  —  Iowa,  — , 
L.R.A.— ,  — ,  154  N.  W.  1037. 

A  section  of  the  workmen's  compensa- 
tion act,  abolishing  the  defenses  of  as- 
sumption of  risk  and  fellow  service  in 
actions  to  hold  employers  liable  for  per- 
sonal injuries  to  servants,  in  cases  where 
the  provisions  of  the  act  are  not  ac- 
cepted, cannot  be  said  to  make  the  act 
coercive  upon  every  employer  or  em- 
ployee, so  as  to  raise  the  question  of  the 
constitutionality  of  such  obligation,  on 
the  theory  that  the  employer  will  be 
compelled  to  accept  the  statute  because 
of  the  loss  of  such  defenses,  and  the 
employee  will  be  compelled  to  do  so  to 
avoid  dismissal  from  service.  Borgnis 
v.  Falk  Co.  (1911)  147  Wis.  327,  37 
L.R.A.(N.S.)  489,  133  N.  W.  209,  3  N. 
C.  C.  A.  649. 

It  is  to  be  noted  that  the  Kentucky 
court,  in  KENTUCKY  STATE  JOURNAL  Co. 
v.  WORKMEN'S  COMPENSATION  BD.  held, 
on  the  rehearing,  that  the  provisions  of 
the  act  were  unobjectionable  as  far  as 
they  affected  the  employer,  as  they  did 
not  conflict  with  any  provision  of  the 
Constitution,  although  in  the  original 
hearing  the  court  had  taken  the  position 
that,  even  so  far  as  the  master  was  con- 
cerned, it  was  not  a  voluntary  contract, 
inasmuch  as  it  took  away  the  affirmative 
defenses  in  case  the1  masters  did  not 
elect  to  come  in  under  the  act. 

The  abolition  of  these  defenses  has 
been  said  to  be  merely  a  declaration  of 
the  policy  of  the  state. 

Thus,  in  De  Francesco  v.  Piney  Min. 
Co.  (1915)  —  W.  Va.  — ,  86  S.  E.  77,  the 
court  said  that  these  defenses  are  such 
that  the  legislature  had  a  clear  right  to 
eliminate  them  for  reasons  of  public 
policy. 

So,  the  deprivation  of  an  employer  of 
the  defenses  of  contributory  negligence, 
assumption  of  risks,  and  coservice,  in 
order  to  induce  him  to  accept  the  pro- 
L.R.A.1916A. 


visions  of  the  act,  is  "merely  a  declara- 
tion by  the  legislature  of  the  public  pol- 
icy of  the  state  in  that  regard."  Hotel 
Bond  Co's  Appeal  (1915)  89  Conn.  143r 
93  Atl.  245. 

"It  cannot  be  said  that  the  withdrawal 
of  the  defenses  of  assumption  of  risk, 
fellow  servant,  and  contributory  negli- 
gence, as  against  an  employer  who  does 
not  go  into  the  plan,  is  coercive,  for 
such  withdrawal  is  in  harmony  with  the 
legislative  policy  of  the  state  for  a  num- 
ber of  years  past."  State  ex  rel.  Yaple 
v.  Creamer  (1912)  85  Ohio  St.  349,  39 
L.R.A.(N.S.)  694,  97  N.  E.  602,  1  N.  C. 
C.  A.  30. 

It  is  to  be  noted,  however,  that  the 
Kentucky  court,  in  KENTUCKY  STATE 
JOURNAL  Co.  v.  WORKMEN'S  COMPENSA- 
TION BD.  has  held  that  the  Kentucky  act 
of  March  21,  1914  (Laws  1914,  chap. 
73),  by  taking  away  from  an  employee 
who  does  not  come  in  under  it,  a  right 
of  recovery  if  his  injury  was  caused  by 
the  negligence  of  a  fellow  servant,  or  if 
he  assumed  the  risk,  or  was  guilty  of 
contributory  negligence,  was  invalid,  as 
compulsory.  It  is  not  entirely  clear, 
however,  that  their  decision  would  not 
have  been  different  had  they  not  been 
influenced  by  §  54  of  the  state  Constitu- 
tion, which  forbids  the  limiting  of  the 
amount  to  be  recovered  for  injuries  re- 
sulting in  death,  or  for  injuries  to  per- 
son or  property. 

Due   process   and   equal   protection   of 
the  law  —  optional  statutes. 

The  courts  have  invariably  held  that 
the  optional  statutes  do  not  infringe  the 
due  process  and  equal  protection  pro- 
visions of  the  Constitution. 

The  Illinois  workmen's  compensation 
act  of  1911  does  not  deprive  an  employee 
of  his  liberty  and  property  without  due 
process  of  law,  since  the  act  is  elective, 
and  not  compulsory.  Deibeikis  v.  Link- 
Belt  Co.  (1913)  261  HI.  454,  104  N.  E. 
211,  5  N.  C.  C.  A.  401,  Ann.  Gas.  1915A, 
241. 

The  Kansas  act  of  1911,  as  amended 
by  the  Laws  of  1913,  being  optional, 
does  not  violate  §  18  of  the  Bill  of  Rights 
nor  the  provisions  of  the  14th  Amend- 
ment to  the  Federal  Constitution  relat- 
ing to  due  process  and  equal  protection 
of  the  laws.  Shade  v.  Ash  Grove  Lime 
&  Portland  Cement  Co.  (1914)  93  Kan. 
257,  144  Pac.  249. 

The  Massachusetts  law,  not  being 
compulsory,  does  not  take  property  with- 
out due  process  of  law.  Opinion  of  Jus- 
tices (1911)  209  Mass.  607,  96  N.  E.  308, 
1  N.  C.  C.  A.  557. 


CONSTITUTIONALITY  OF  STATUTE. 


415 


Part  2  of  the  act  substitutes  the  rights, 
remedies,  and  liabilities  therein  pro- 
vided for  those  previously  existing,  and 
employers  and  employees  subject  thereto 
are  limited  to  such  rights  and  remedies; 
but  such  provisions  impair  no  constitu- 
tional right,  as  they  apply  only  to  those 
who  have  voluntarily  chosen  to  become 
subject  thereto,  and  such  choice  is  no 
less  optional  because  part  2  is  presumed 
to  have  been  accepted  by  all  employers 
and  employees  who  have  not  given  notice 
to  the  contrary.  Mathison  v.  Minne- 
apolis Street  R.  Co.  (1914)  126  Minn. 
286,  L.R.A.— ,  — ,  148  N.  W.  71,  5  N.  C. 
C.  A.  871. 

Section  2  of  the  New  Jersey  act  of 
1911,  providing  that  compensation  shall 
be  made  "without  regard  to  the  negli- 
gence of  the  employers,"  being  elective, 
is  not  unconstitutional  as  being  violative 
of  the  due  process  clause  of  the  Consti- 
tution. Sexton  v.  Newark  Dist.  Teleg. 
Co.  (1913)  84  N.  J.  L.  85,  86  Atl.  451, 
3  N.  C.  C.  A.  569. 

The  Texas  act,  being  optional,  is  not 
violative  of  the  due  process  or  equal 
protection  clauses  of  the  Federal  Consti- 
tution. Memphis  Cotton  Oil  Co.  v.  Tol- 
bert  (1914)  —  Tex.  Civ.  App.  — ,  171  S. 
W.  309,  7  N.  C.  C.  A.  547. 

The  act  is  elective  rather  than  com- 
pulsory in  order  to  avoid  a  claim  of  its 
unconstitutionality.  Hotel  Bond  Go's 
Appeal  (1915)  89  Conn.  143,  93  Atl.  245. 

In  Albanese  v.  Stewart  (1912)  78 
Misc.  581,  138  N.  Y.  Supp.  942,  in  an 
action  which  arose  in  New  Jersey,  the 
court  overruled  a  demurrer  to  the  de- 
fendant's answer,  setting  up  the  uncon- 
stitutionality of  the  New  Jersey  statute. 
The  court  said  that  while  compulsory 
compensation  was  unconstitutional,  the 
New  Jersey  act  was  optional,  or  elective. 

Permitting  an  administrative  board 
which  acts  only  by  consent  of  the  par- 
ties interested,  to  take  testimony  with- 
out notice  to  either  party,  and  to  give 
notices  by  mail,  does  not  deprive  the 
parties  of  due  process  of  law.  Borgnis 
v.  Falk  Co.  (1911)  147  Wis.  327,  39 
L.R.A.(N.S.)  489, 133  N.  W.  209,  3  N.  C. 
C.  A.  649. 

In  State  ex  rel.  Yaple  v.  Creamer 
(1912)  85  Ohio  St.  349,  39  L.R.A.(N.S-) 
694,  97  N.  E.  602,  1  N.  C.  C.  A.  30,  the 
Ohio  court,  in  holding  that  the  statutes 
of  that  state  did  not  take  private  prop- 
erty without  due  process  of  law,  and 
deny  the  guaranties  of  the  Constitution, 
said:  "Under  the  law  under  investiga- 
tion here,  as  already  shown,  the  right 
of  action  (for  injury  by  wilful  act  of  the 
employer  and  for  his  failure  to  comply 
L.R.A.1916A. 


with  requirements  as  to  the  safety  of 
employees)  is  still  reserved  to  the  em- 
ployees. So  that  the  only  thing  with- 
drawn by  this  law,  and  to  which  with- 
drawal he  consents  by  his  voluntary 
election  to  operate  under  the  law,  is  his 
right  of  action  for  mere  negligence;  and 
in  place  of  it  he  receives  the  substantial 
protections  and  privileges  under  the 
state  insurance  fund.  .  .  .  We  think 
that  in  a  case  such  as  is  presented  here, 
in  which  the  state  itself  has  undertaken 
a  great  enterprise  in  the  interest  of  the 
general  good,  and  in  the  exercise  of  its 
police  power,  and  presents  to  its  citi- 
zens the  option  to  join  in  the  undertak- 
ing and  receive  its  protection  and 
benefit,  on  a  right  of  action  being  with- 
drawn by  the  legislature,  which  experi- 
ence has  shown  to  be  difficult  of  prac- 
tical enforcement,  while  preserving  the 
valuable  and  substantial  kindred  rights 
of  action,  it  cannot  be  said  that  in  such 
withdrawal  there  is  a  violation  of  the 
Constitution  in  the  respects  claimed." 

—  compulsory  acts. 

The  validity  of  the  compulsory  stat- 
ute has  been  passed  upon  by  the  highest 
courts  of  New  York,  Washington,  Mon- 
tana, and  California.  These  decisions 
will  be  taken  up  in  the  order  in  which 
they  were  rendered.  The  character  of 
the  different  statutes  will  be  shown,  and 
some  quotations  from  the  decisions  will 
be  given  to  show  as  accurately  as  possi- 
ble the  attitude  of  the  court  rendering 
the  decision. 

It  should  be  especially  noted  that  the 
Constitutions  of  New  York,  California, 
and  Ohio  have  been  amended  so  as  to 
permit  the  passage  of  the  compulsory 
compensation  act  without  infringing  the 
due  process  clauses  of  the  state  Consti- 
tution. The  similar  provisions  of  the 
Federal  Constitution,  however,  are  still 
to  be  considered.  There  appears  as  yet 
to  be  no  decision  as  to  the  validity  of  the 
Ohio  act  passed  subsequently  to  the 
amendment  of  the  Constitution. 

The  first  compensation  act  passed  in 
the  United  States  was  the  New  York 
act  of  1910,  being  chapter  674  of  the 
Laws  of  that  year.  This  statute  was 
applicable  only  to  the  so-called  hazard- 
ous employments  specifically  mentioned 
in  the  act.  It  provided  a  scale  of  com- 
pensation to  be  paid  by  the  employer  di- 
rectly to  an  injured  employee,  although 
the  injuries  may  have  been  caused  by 
no  fault  on  the  part  of  the  master;  and 
it  reserved  to  the  employee  any  existing 
right  of  action  for  damages  caused  by 
negligence  upon  the  part  of  the  master. 


416 


WORKMEN'S  COMPENSATION. 


This  statute  was  pronounced  uncon- 
stitutional by  the  New  York  court  of 
appeals  in  Ives  v.  South  Buffalo  R.  Co. 
(1911)  201  N.  Y.  271,  34  L.R.A.(N.S.) 
162,  94  N.  E.  431, 1  N.  C.  C.  A.  517,  Ann.  ' 
Cas.  1912B,  156.  The  decision  of  tho 
court  was  placed  squarely  upon  the 
ground  that  inasmuch  as  the  statute 
made  the  employer  liable  in  cases  in 
which  he  had  not  been  at  fault,  it  was 
in  violation  of  the  clauses  in  the  Fed- 
eral and  state  Constitutions  which  pro- 
hibit a  deprivation  of  liberty  and 
property  without  due  process  of  law. 
Although  this  particular  statute  is  open 
to  certain  objections  peculiar  to  itself, 
which  could  be  reasonably  argued  as  in- 
validating it,  nevertheless  the  court  did 
not  base  its  decision  upon  any  such 
ground,  but  condemned  the  entire  theory 
of  rendering  an  employer  liable  for  in- 
juries to  an  employee  where  he  had  been 
without  fault.  The  court  said:  "We 
have  tried  to  make  it  clear  that,  in  our 
judgment,  this  statute  is  not  a  law  of 
regulation.  It  contains  not  a  single  pro- 
vision which  can  be  said  to  make  for 
the  safety,  health,  or  morals  of  the  em- 
ployees therein  specified,  nor  to  impose 
upon  the  enumerated  employers  any 
duty  or  obligation  designed  to  have  that 
effect.  It  does  not  affect  the  status  of 
employment  at  all,  but  writes  into  the 
contract  between  the  employer  and  em- 
ployee, without  the  consent  of  the 
,  former,  a  liability  on  his  part  which 
never  existed  before,  and  to  which  he  is 
permitted  to  interpose  practically  no  de- 
fense, for  he  can  only  escape  liability 
when  the  employee  is  injured  through 
his  own  wilful  misconduct." 

This  decision  was  rendered  subsequent 
to  that  of  the  United  States  Supreme 
Court  -in  Noble  State  Bank  v.  Haskell 
(1911)  219  U.  S.  104,  55  L.  ed.  112,  32 
L.R.A.(N.S.)  1062,  31  Sup.  Ct.  Rep.  186, 
Ann.  Cas.  1912A,  487,  in  which  it  was 
held  that  the  levy  and  collection  under 
a  state  statute  from  every  bank  existing 
under  the  state  laws,  of  an  assessment 
based  upon  the  average  daily  deposit, 
for  the  purpose  of  creating  a  depositors' 
fund  to  secure  the  whole  repayment  of 
deposits,  in  case  any  such  bank  should 
become  insolvent,  is  a  valid  exercise  of 
the  police  power,  and  cannot  be  regarded 
as  depriving  a  solvent  bank  of  its  liberty 
or  property  without  due  process  of  law. 
A  similar  decision  was  rendered  in 
Assaria  State  Bank  v.  Dolley  (1911)  219 
U.  S.  121,  55  L.  ed.  123,  31  Sup.  Ct.  Rep. 
189. 

The  following  quotation  from  the  de- 
cision of  the  New  York  court  of  appeals 
L.K.A.1916A. 


in  the  Ives  Case  shows  clearly  that  the 
state  court  was  not  disposed  to  follow 
the  United  States  Supreme  Court,  that 
is,  of  course,  as  to  the  construction  of 
the  provisions  of  the  State  Constitution. 
The  court  said:  "As  to  the  cases  of 
Noble  State  Bank  v.  Haskell  and  Assaria 
State  Bank  v.  Dolley  (U.  S.)  supra,  we 
have  only  to  say  that  if  they  go  so  far 
as  to  hold  that  any  law,  whatever  its 
effect,  may  be  upheld  because  by  the 
'prevailing  morality'  or  the  'strong  and 
preponderant  opinion'  it  is  deemed  'to 
be  greatly  and  immediately  necessary  to 
the  public  welfare,'  we  cannot  recognize 
them  as  controlling  of  our  construction 
of  our  own  Constitution.  That  the  busi- 
ness of  banking  in  the  several  states  may 
be  regulated  by  legislative  enactment 
is  too  obvious  for  discussion.  That  the 
extent  to  which  such  state  regulation 
may  be  carried  must  depend  upon  the 
difference  in  constitutional  provisions  is 
also  plain.  How  far  these  late  decisions 
of  the  Federal  Supreme  Court  are  to 
be  regarded  as  committing  that  tribunal 
to  the  doctrine  that  any  citizen  may  be 
deprived  of  his  private  property  for  the 
public  welfare,  we  are  not  prepared  to 
decide.  All  that  it  is  necessary  to  af- 
firm in  the  case  before  us  is  that,  in  our 
view  of  the  Constitution  of  our  state,  the 
liability  sought  to  be  imposed  upon  the 
employers  enumerated  in  the  statute  be- 
fore us  is  a  taking  of  property  without 
due  process  of  law,  and  the  statute  is 
therefore  void." 

Further  discussion  of  this  decision 
will  be  found  in  connection  with  the 
discussion  of  the  JENSEN  CASE,  infra. 

The  next  statute  of  a  compulsory  char- 
acter is  the  Washington  act  of  March 
14,  1911  (Laws  1911,  p.  345).  This  act 
also  applies  to  certain  expressly  desig- 
nated hazardous  employments.  Instead 
of  being  a  direct  liability  statute,  similar 
to  that  pronounced  invalid  in  the  Ives 
Case,  it  provided  for  the  creation  of  a 
fund  known  as  the  "accident  fund,"  to 
which  all  employers  engaged  in  the 
hazardous  employments  enumerated  were 
obliged  to  contribute,  the  contributions 
being  based  upon  the  hazardousness  of 
the  employment,  and  compensation  to 
an  injured  employee  being  payable  out 
of  the  fund. 

The  constitutionality  of  this  statute 
was  upheld  in  State  ex  rel.  Davis-Smith 
Co.  v.  Clausen  (1911)  65  Wash.  156,  37 
L.R.A.(N.S.)  466,  117  Pac.  1101,  2  N.  C. 
C.  A.  823,  3  N.  C.  C.  A.  599,  both  against 
the  contention  that  it  created  a  liability 
without  fault,  and  that  it  took  the  prop- 


CONSTITUTIONALITY  OF  STATUTE. 


417 


erty  of  one  employer  to  pay  the  obliga- 
tions of  another. 

The  Washington  court  said  that  it 
must  be  conceded  that  these  contentions 
had  a  basis  in  fact,  and  that  they  on 
first  impression  constituted  a  persuasive 
argument  against  the  validity  of  the  act. 
Upon  this  point  the  court  said:  "Since 
there  is  exacted  from  every  employer  of 
labor  engaged  in  one  or  more  of  the 
industries  termed  'hazardous'  a  certain 
fixed  sum  based  upon  his  pay  roll,  which 
is  to  be  used  to  compensate  employees 
working  in  such  hazardous  employments 
who  receive  personal  injuries,  regardless 
of  the  question  whether  the  injury  was 
because  of  the  fault  of  the  employer  or 
of  the  negligence  of  the  employee,  it  can 
be  said  that  some  part  of  the  sum  so 
collected  will  be  paid  out  on  injuries 
in  which  the  employer  is  without  fault; 
and  furthermore,  since  every  such  em- 
ployer is  liable  to  make  the  payments 
whether  or  not  any  of  his  own  workmen 
are  injured,  and  since  an  employer  is 
liable  under  the  common  law  for  an  in- 
jury to  his  own  workmen  only,  it  can 
also  be  said  that  by  this  act  one  em- 
ployer is  held  liable  for  the  obligations 
of  another." 

But  the  court  said  that  the  test  of  the 
validity  of  the  law  was  not  whether  it 
creates  a  liability  without  fault,  or 
whether  it  takes  the  property  of  one  per- 
son to  pay  the  obligations  of  another, 
but  rather  whether  there  is  any  reason- 
able ground  to  believe  that  the  public 
safety,  health,  or  general  welfare  is  pro- 
moted thereby.  And  the  court  went  on 
to  say:  "The  clause  of  the  Constitution 
now  under  consideration  was  intended 
to  prevent  the  arbitrary  exercise  of  pow- 
er or  undue,  unjust,  and  capricious  inter- 
ference with  personal  rights ;  not  to  pre- 
vent those  reasonable  regulations  that 
all  must  submit  to  as  a  condition  of 
remaining  a  member  of  society.  In  oth- 
er words,  the  test  of  a  police  regulation 
when  measured  by  this  clause  of  the 
Constitution  is  reasonableness  as  contra- 
distinguished from  arbitrary  or  capri- 
cious action." 

After  citing  numerous  cases  in  which 
it  said  that  statutes  had  been  upheld 
by  courts  which  could  be  said  to  create 
liability  without  fault,  and  take  the 
property  of  one  person  to  pay  the  obli- 
gations of  another,  the  Washington 
court  summed  up  its  argument  on  this 
branch  of  the  case  as  follows:  "If, 
therefore,  the  act  in  controversy  has  a 
reasonable  relation  to  the  protection  of 
the  public  health,  morals,  safety,  or  wel- 
fare, it  is  not  to  be  set  aside  because 
L.R.A.1916A.  27 


it  may  incidentally  deprive  some  person 
of  his  property  without  fault,  or  take 
the  property  of  one  person  to  pay  the 
obligations  of  another.  To  be  fatally 
defective  in  these  respects  the  regulation 
must  be  so  utterly  unreasonable  and  so 
extravagant  in  nature  and  purpose  as  to 
capriciously  interfere  with  and  destroy 
private  rights.  That  the  statute  here  in 
question  has  the  attribute  of  reasonable- 
ness rather  than  that  of  capriciousness 
seems  incontrovertible.  The  evil  it  seeks 
to  remedy  is  one  that  calls  loudly  for 
action.  Accidents  to  workmen  engaged 
in  the  industries  enumerated  in  it  are 
all  but  inevitable.  .  .  .  Heretofore 
these  losses  have  been  borne  by  the  in- 
jured workmen  themselves,  by  their  de- 
pendents, or  by  the  state  at  large.  It 
was  the  belief  of  the  legislature  that 
they  should  be  borne  by  the  industries 
causing  them ;  or  perhaps  more  accurate- 
ly, by  the  consumers  of  the  products  of 
such  industries.  That  the  principle  thus 
sought  to  be  put  into  effect  is  econom- 
ically, sociologically,  and  morally  sound 


we  think  must  be  conceded. 


The 


common  law  does  not  purport  to  afford  a 
remedy  for  the  condition  here  found  to 
exist.  It  affords  relief  to  an  injured 
workman  in  only  a  limited  number  of 
cases, — cases  where  the  injury  is  the  re- 
sult of  fault  on  the  part  of  the  em- 
ployer,— and  there  is  want  of  fault  on 
the  part  of  the  workman.  For  the 
greater  number  of  injuries  traceable  to 
the  dangers  incident  to  industry,  no 
remedy  at  all  is  afforded.  The  act,  there- 
fore, having  in  its  support  these  eco- 
nomic and  moral  considerations,  is  not 
unconstitutional  for  the  reasons  sug- 
gested upon  this  branch  of  the  argu- 
ment." 

The  court  further  said:  "It  is  not 
meant  here  to  be  asserted  that  this  pow- 
er is  above  the  Constitution,  or  that 
everything  done  in  the  name  of  the 
police  power  is  lawfully  done.  It  is 
meant  only  to  be  asserted  that  a  law 
which  interferes  with  personal  and  prop- 
erty rights  is  valid  only  when  it  tends 
reasonably  to  correct  some  existing  evil, 
or  promote  some  interest  of  the  state, 
and  is  not  in  violation  of  any  direct  and 
positive  mandate  of  the  Constitution." 

In  speaking  of  the  Ives  case,  the 
Washington  court  said :  "The  act  the 
court  there  had  in  review  is  dissimilar 
in  many  respects  to  the  act  before  us, 
and  is  perhaps  less  easily  defended  on 
economic  grounds.  The  principle  em- 
bodied in  the  statutes  is,  however,  the 
same,  and  it  must  be  conceded  that  the 
case  is  direct  authority  against  the  po- 


418 


WORKMEN'S  COMPENSATION. 


sition  we  have  here  taken.  We  shall  of- 
fer no  criticism  of  the  opinion.  We  will 
only  say  that,  notwithstanding  the  de- 
cision comes  from  the  highest  court 
of  the  first  state  of  the  Union,  and  is 
supported  by  a  most  persuasive  argu- 
ment, we  have  not  been  able  to  yield  our 
consent  to  the  view  there  taken." 

The  difference  in  the  attitude  of  the 
two  courts  may  be  further  shown  by  a 
comparison  of  two  quotations,  one  from 
the  Ives  decision,  and  the  other  from  a 
decision  by  the  Washington  court  in  a 
subsequent  case. 

Thus  the  New  York  court  said :  "If 
it  is  competent  to  impose  upon  an  em- 
ployer who  has  omitted  no  legal  duty 
and  has  committed  no  wrong,  a  liability 
based  solely  upon  a  legislative  fiat  that 
his  business  is  inherently  dangerous,  it 
is  equally  competent  to  visit  upon  him 
a  special  tax  for  the  support  of  hospitals 
and  other  charitable  institutions,  upon 
the  theory  that  they  are  devoted  largely 
to  the  alleviation  of  ills  primarily  due 
to  his  business.  In  its  final  and  simple 
analysis  that  is  taking  the  property  of 
A  and  giving  it  to  B;  and  that  cannot 
be  done  under  our  Constitutions." 

While  in  State  v.  Mountain  Timber 
Co.  (1913)  75  Wash.  581,  L.R.A.— ,  — , 
135  Pac.  645,  4  N.  C.  C.  A.  811,  the 
Washington  court  said:  "The  legisla- 
ture has  said  to  the  man  whose  business 
is  a  dangerous  one,  and  the  operation  of 
which  may  bring  injury  to  an  employee, 
that  he  cannot  do  business  without  waiv- 
ing certain  rights  and  privileges  here- 
tofore enjoyed,  and  it  has  said  to  the 
employee  that,  inasmuch  as  he  may  be- 
come dependent  upon  the  state,  that  he 
must  give  up  his  personal  right  of  con- 
tract when  about  to  engage  in  a  hazard- 
ous occupation,  and  contract  with  refer- 
ence to  the  law." 

The  Washington  court  quotes  the  de- 
cision of  the  United  States  Supreme 
Court,  the  Noble  State  Bank  Case,  at 
considerable  length,  and  relies  upon  it 
to  answer  the  objection  that  the  act  took 
private  property  for  a  private  use  and 
created  a  liability  without  fault. 

The  next  statute  to  be  considered  is 
the  Montana  act  (Laws  1909,  chap.  67, 
p.  81).  This  enactment  provided  a  state 
accident  insurance  and  total  disability 
fund  for  coal  miners  and  employees  of 
coal  washers.  The  fund  was  created  by 
levying  contributions  on  both  the  em- 
ployers and  the  employees. 

In  Cunningham  v.  Northwestern  Im- 
prov.  Co.  (1911)  44  Mont.  180,  119  Pac. 
554,  1  N.  C.  C.  A.  720,  the  court  took 
the  position  that  the  general  scheme  of 
L.R.A.1916A. 


the  Montana  act  in  providing  a  system 
of  industrial  insurance  for  miners  was- 
justifiable  under  the  police  power  of  the 
state,  since  it  tended  to  minimize  indi- 
gency  and  the  enormous  expense  of 
operating  courts. 

The  assessment  to  be  paid  by  the  mine 
operators  and  the  miners,  under  the 
Montana  act,  was  held  to  be  in  the  na- 
ture of  an  occupational  tax,  and  conse- 
quently the  imposition  of  this  tax  did 
not  deprive  either  the  miners  or  their 
employers  of  their  property  without  due 
process  of  law.  The  court  further  said 
that  if  a  statute  tended  to  prevent  the 
evils  growing  out  of  and  incident  to 
the  present  system  of  actions  for  faults,, 
it  ought  to  be  upheld  so  far  as  that  point  • 
is  concerned,  although  the  statute  did 
not  expressly  abolish  that  system.  This 
statute  was  also  upheld  against  the  con- 
tention that  it  was  void  because  ii;  did 
not  differentiate  between  a  careful  and 
a  careless  employer. 

The  decisions  in  the  Noble  State 
Bank  and  Clausen  Cases  were  cited  as 
authority  for  the  conclusion  of  the  Mon- 
tana court ;  the  Ives  Case  was  also  cited ; 
but  the  conclusion  of  the  New  York 
court  that  the  statute  therein  involved 
was  invalid  does  not  appear  to  have  been 
touched  upon. 

While  the  general  scheme  of  the  act 
was  sustained  by  the  court,  the  act  was- 
pronounced  unconstitutional  because  it. 
reserved  to  the  employee  his  right  to  an 
action  at  law,  and  consequently  the  mine 
operator,  although  he  contributed  to  the 
fund,  was  not  relieved  from  all  liability 
because  of  the  injury.  The  court  said: 
"The  duty  to  make  payment  as  provided 
in  $  2  is  absolute  and  unconditional.  It 
can  be  enforced  by  appropriate  action. 
But,  after  full  compliance  with  the  terms 
of  the  act,  the  employer  is  not  exon- 
erated from  liability.  He  may  still  be 
sued  and  compelled  to  pay  damages  in 
a  proper  case.  No  provision  is  made 
for  reimbursement  in  whole  or  in  part. 
The  injured  employees  of  one  operator 
may  all  resort  to  the  indemnity  fund, 
while  those  of  another  may  elect  to  ap- 
peal to  the  courts.  The  res"lt  is  that 
the  employer  against  whom  an  action  is 
successfully  prosecuted  is  compelled  to- 
pay  twice.  He  has  fully  paid  his  assess- 
ments under  the  act  and  is  also  obliged 
to  pay  damages.  This  fact  is  so  palpa- 
ble as  to  be  needless  of  discussion.  The 
act  in  this  regard  is  not  only  inequitable 
and  unjust,  but  clearly  illegal  and  void, 
as  not  affording  to  such  employer  the- 
equal  protection  of  the  laws." 

It  may  be  pointed  out  that  the  ground! 


CONSTITUTIONALITY  OF  STATUTE. 


for  holding  the  Montana  statute  uncon- 
stitutional could  also  have  been  urged 
against  the  New  York  act,  but  the  court 
of  appeals  made  no  mention  of  this  fact. 

The  next  act  is  the  second  workmen's 
compensation  statute  of  New  York 
(Laws  1914,  chap.  41),  which  is  upheld 
in  JENSEN  v.  SOUTHERN  P.  Co.  This  act 
is  sufficiently  set  forth  in  the  reported 
case,  and  it  is  sufficient  to  say  that  it 
is  an  industrial  insurance  act,  similar  to 
that  of  Washington,  but  includes  a  much 
larger  number  of  employments.  The  act 
further  provides  that  the  employer  shall 
secure  the  compensation  to  his  employee 
either  by  insuring  and  keeping  insured 
the  payment  of  such  compensation  in 
the  state  fund  or  in  a  stock  corporation 
or  mutual  association,  or  by  furnishing 
satisfactory  proof  .of  his  own  financial 
ability  to  pay  the  compensation  for  him- 
self. 

The  New  York  court  has  been  severely 
criticized,  particularly  by  laymen,  for 
its  decision  in  the  Ives  Case,  and  also 
for  its  supposed  inconsistency  in  hold- 
ing the  first  act  void  while  sustaining  the 
later  act. 

But  whatever  criticisms  may  be  di- 
rected against  the  attitude  of  the  New 
York  court  of  appeals  in  the  Ives  Case, 
it  may  be  well  to  note  that  no  other  leg- 
islature has  passed  a  statute  along  the 
lines  condemned  in  that  case  except  the 
California  statute  discussed  below  and  a 
majority  of  the  supreme  court  of  that 
state  has  said  that  the  act  would  not  be 
constitutional  if  it  did  not  contain  the  in- 
dustrial insurance  idea.  And  it  is  prob- 
ably safe  to  say  that  at  the  time  the  Ives 
decision  was  rendered,  very  few  courts 
or  students  of  constitutional  law  would 
have  taken  a  contrary  view  of  the  ab- 
stract proposition  that  a  statute  impos- 
ing liability  upon  an  innocent  employer 
for  injuries  to  an  employee,  received 
through  no  fault  of  the  employer,  is  in 
violation  of  the  constitutional  provision 
guarantying  due  process  of  law. 

A  comparison  between  the  purposes 
of  the  two  New  York  statutes  discloses 
a  fundamental  distinction  justifying  the 
ultimate  conclusion  of  the  court  that  the 
first  act  was  invalid,  while  the  second 
is  sound  as  a  valid  exercise  of  the  police 
power. 

The  statute  condemned  in  the  Ives 
Case  reserved  to  an  employee  injured  by 
the  negligence  of  the  employer  the  exist- 
ing common-law  or  statutory  remedies 
by  action  for  damages,  and  consequently 
it  might  be  said  to  be  directly  aimed 
at  an  employer  whose  employees  were 
injured  without  fault  upon  his  part.  On 
L.R.A.1916A. 


the  other  hand,  the  statute  upheld  in  the 
JENSEN  CASE  applies  to  all  employers 
engaged  in  the  designated  employments,, 
whether  negligent  or  otherwise,  and 
thus  presents  an  entirely  new  scheme 
regulating  the  payment  of  compensation 
to  injured  employees  in  the  designated! 
employments. 

The  first  act  merely  imposed  an  addi- 
tional burden  upon  the  employer  with- 
out fault.  The  second  act,  viewed  as  a 
whole,  is  in  the  nature  of  a  give-and- 
take  statute,  in  which  certain  benefits 
are  given  and  taken  away  from  both  the 
employer  and  the  employee,  and,  as  a 
whole,  was  intended  to  remedy  a  condi- 
tion which  to  many  thoughtful  persons 
had  become  intolerable.  From  this 
standpoint  it  may  well  be  justified  as  an 
exercise  of  the  police  power;  or  at  least 
there  is  a  very  marked  distinction  be- 
tween it  and  the  act  held  void  in  the 
decision  in  the  Ives  Case. 

In  its  later  decision  the  court  dis- 
tinguishes the  two  acts  upon  the  ground 
that  the  first  act  made  no  attempt  to 
distribute  the  burden,  and  subjected  the 
employer  to  a  suit  for  damages.  But 
that  the  attitude  of  the  New  York  court 
has  changed  somewhat  at  least  is  evi- 
dent from  its  reliance  upon  the  decision 
of  the  United  States  Supreme  Court  in 
the  Noble  Bank  Case,  which  it  was  not 
disposed  to  follow  in  its  decision  iit 
the  Ives  Case;  but  the  court  is. 
entirely  correct  in  saying  that  the  two 
statutes  are  radically  different.  But, 
as  has  been  stated  above,  the  New  York 
court  in  its  first  decision  made  no  point 
of  the  peculiarities  of  the  particular 
statute,  but  condemned  it  upon  the  gen- 
eral ground  that  the  theory  of  making 
an  employer  liable  where  he  had  not 
been  negligent  was  violative  of  the- 
fundamental  principles  of  due  process. 

In  some  respects  the  later  act  imposes 
greater  burdens  upon  the  employer  than 
did  the  earlier  act.  Under  the  present 
statutes  he  is  obliged  to  contribute  to 
a  fund  which  will  compensate  employees 
of  all  employers  engaged  in  the  same 
business,  and  his  contributions  to  this 
fund  are  determined  by  the  risk  in- 
curred by  the  employees  in  that  business, 
and  this  contribution  upon  his  part  may 
be  greatly  in  excess  of  what  he  would 
be  obliged  to  pay  if  he  had  to  com- 
pensate only  his  own  injured  employees. 

From  this  point  of  view  the  second 
act  would  seem  even  more  unjustifiable 
than  the  first,  since  there  the  employer 
was  obliged  to  compensate  only  his  own 
employees;  but  under  the  second  act  he 
is  compelled  to  pay  his  contributions. 


420 


WORKMEN'S  COMPENSATION. 


to  the  fund  although  none  of  his  own 
employees  are  injured,  and  his  contri- 
butions to  the  fund  will  be  devoted  to 
compensation  of  injured  employees  of 
other  employers,  and  such  injuries  may 
in  fact  have  been  caused  by  the  negli-  j 
gence  of  the  other  employers.  This  ob- 
jection is  suggested  by  the  New  York 
court  in  its  decision  in  the  Ives  Case, 
although  of  course  the  act  there  under 
discussion  did  not  contain  this  provision. 
The  court  there  said:  "Under  this  law, 
the  most  thoughtful  and  careful  employ- 
er, who  has  neglected  no  duty,  and  whose 
workshop  is  equipped  with  every  possi- 
ble appliance  that  may  make  for  the 
safety,  health,  and  morals  of  his  em- 
ployees, is  liable  in  damages  to  any  em- 
ployee who  happens  to  sustain  injury 
through  an  accident  which  no  human 
being  can  foresee  or  prevent,  or  which, 
if  preventable  at  all,  can  only  be  pre- 
vented by  the  reasonable  care  of  the 
employee  himself."  It  is,  however,  to  be 
noted  that  both  the  Washington  and  the 
Montana  courts  upheld  their  respective 
•statutes  against  the  contention  that 
they  did  not  differentiate  between  the 
careful  and  the  careless  employer. 

As  to  the  fundamental  principle  in- 
volved, it  is  certainly  quite  difficult  to 
make  a  logical  distinction  between  the 
theory  condemned  in  the  Ives  Case,  and 
the  theory  upheld  in  the  JENSEN  CASE. 
It  certainly  could  be  plausibly  argued 
that  the  court  in  the  latter  case  says 
that  that  may  be  done  indirectly,  which 
it  had  been  previously  said  could  not 
be  done  directly;  and  this  view  has  been 
taken.  In  the  dissenting  opinion  of 
Henshaw,  J.,  in  Western  Indemnity  Co. 
v.  Pillsbury  (Cal.)  infra,  in  which  he 
held  that  the  California  act  was  invalid, 
he  contends  that  if  the  liability  to  pay 
compensation  for  injuries  not  caused  by 
the  employer's  negligence  is  unauthor- 
ized, there  can  be  no  authority  to  com- 
pel an  employer  to  insure  himself 
against  such  invalid  liability. 

He  said:  "The  Ives  Case  flatly,  and, 
I  think,  correctly,  held  that  the  imposi- 
tion of  the  liability  did  violence  to  the 
Constitution  of  the  United  States.  The 
later  decision  [JENSEN  CASE]  does  not 
in  the  least  attempt  to  explain  how  the 
difficulty  is  obviated  by  an  amendment 
of  the  state  Constitution,  but  declares 
merely  that  the  compulsory  insurance 
made  a  part  of  the  law  places  the  whole 
law  within  the  protective  sanctuary  of 
the  Haskell  Case.  In  a  sense  there  is  a 
similarity  between  the  Haskell  Case  and 
the  New  York  case.  It  appears  in  this: 
In  the  Haskell  Case  people  who  had 
L.R.A.1916A. 


actually  sustained  loss  were  to  be  made 
good, — depositors  in  banks  that  failed. 
In  the  New  York  case,  its  law  being  ad- 
dressed only  to  employees  in  hazardous 
occupations,  it  might  be  assumed,  as  has 
been  said,  that  such  employees  were  de- 
pendent on  their  wages,  and  thus  in  need 
of  compensatory  assistance,  or  they 
would  not  be  engaged  in  such  employ- 
ments. But  our  law  nowhere  nor  in  the 
remotest  degree  exercises  this  amount  of 
selection  and  discrimination,  but  bestows 
its  bounty  on  all.  But,  more  important 
still,  I  am  utterly  unable  to  perceive  how 
a  liability  primarily  illegal  and  void 
may  be  metamorphosed  into  a  legal  lia- 
bility by  a  compulsory  law  requiring 
the  employer  to  insure  against  it.  Mani- 
festly the  insurance  is  not  even  designed 
for  the  employer's  benefit,  since  he  is 
subject  to  additional  penalties  if  he  does 
not  insure,  but  for  the  benefit  of  the 
employee.  The  result,  therefore,  is  but 
to  impose  another  burden  on  the  em- 
ployer. He  may  be  willing  to  take  the 
risk  of  accidental  injury.  There  may  to 
his  employees  occur  no  such  injury,  but 
he  is  still  obliged  to  pay  out,  by  way  of 
insurance,  money  exacted  from  him  be- 
cause the  state  had  seen  fit  to  threaten 
him  with  an  illegal  liability  if  he  does 
not  insure  against  that  illegal  liability. 
So  I  say  the  element  of  insurance  is  the 
importation  into  the  discussion  of  a  false 
and  irrelevant  quantity.  If  the  primary 
liability  is  legal,  it  requires  no  appeal 
to  the  insurance  provisions  for  its  sup- 
port. If  it  is  not  legal,  then  the  argu- 
ment is  simply  a  declaration  that  an 
illegal  liability  is  made  legal  because  it 
may  or  must  be  insured  against." 

The  later  New  York  act  professes  to 
relieve  an  employer  who  fulfils  its  re- 
quirements from  all  other  liabilities,  but 
this  is  not  true  in  those  cases  falling 
within  the  application  of  the  Federal 
laws,  as  where  an  employee  of  an  inter- 
state carrier  by  rail  is  himself  engaged 
in  furthering  such  interstate  commerce, 
and  is  injured  by  the  negligence  of  the 
carrier;  or  where  the  property  of  the 
employer  may  be  proceeded  against  in 
admiralty.  Both  of  these  situations 
have  been  before  the  New  York  court  of 
appeals  and  the  act  has  been  sustained. 

Thus,  in  Winfield  v.  New  York  C.  & 
H.  R.  R.  Co.  (1915)  —  N.  Y.  — ,  110  N. 
E.  614,  the  court  upheld  an  award  of 
compensation  to  an  employee  of  au  in- 
terstate railroad  who,  while  himself 
engaged  in  furthering  interstate  com- 
merce, was  injured  without  fault  on  the 
part  of  the  employer.  This  decision  is 
put  upon  the  ground  that,  as  the  em- 


CONSTITUTIONALITY  OF  STATUTE. 


421 


ployer  was  not  negligent,  the  Federal  act 
does  not  apply. 

So,  too,  it  has  been  held  that  the  New 
York  law,  in  granting  exemption  from 
further  liability  to  employers  who  com- 
ply with  it,  does  not  deny  equal  protec- 
tion in  the  case  of  employers  whose 
property  may  be  proceeded  against  in 
admiralty,  since  the  exemption  is  from 
suit  at  common  law,  of  which  all  em- 
ployers complying  with  the  act  equally 
have  the  benefit.  Re  Walker  (1915)  — 
N.  Y.  — ,  109  N.  E.  604. 

The  decision  of  the  United  States  Su- 
preme Court  upon  this  point  will  be 
awaited  with  interest. 

The  provision  of  §  21  of  the  New  York 
act  that,  in  any  proceedings  for  the  en- 
forcement of  a  claim,  it  shall  be  pre-  j 
sumed,  in  the  absence  of  substantial  evi- ' 
dence  to  the  contrary,  "(1)  that  the 
claim  comes  within  the  provision  of  the 
chapter,"  has  been  held  not  to  infringe 
upon  the  due  process  of  law  guaranteed 
by  the  Constitution.  McQueeney  v. 
Sutphen  (1915)  167  App.  Div.  528,  153 
N.  Y.  Supp.  554. 

The  last  compulsory  statute  to  be  re- 
viewed by  the  court  is  the  California 
act  of  1913  (Stat.  1913,  p.  279).  This 
act  provides  for  direct  payment;  that  is, 
the  employer  is  required  to  compensate 
his  employees  for  injuries  actually  re- 
ceived in  the  particular  employment,  in- 
stead of  being  required  to  pay  certain 
sums  into  a  state  fund,  or  to  provide 
insurance  in  other  ways.  The  statute 
also  declares  that  an  employer  who  is 
insured  against  liability  for  the  full 
amount  of  compensation  payable  or  to 
become  payable  may  be  relieved  of  lia- 
bility by  giving  certain  notices  to  the 
parties  interested. 

This  act  was  upheld  in  Western  In- 
demnity Co.  v.  Pillsbury  (1915)  —  Cal. 
— ,  151  Pac.  398,  but  by  a  divided 
court.  Three  justices  took  the  view  that 
the  act  was  constitutional  in  its  entire- 
ty and  that  the  legislature  had  authority, 
under  the  police  power  of  the  state,  to 
pass  an  act  making  an  employer  direct- 
ly responsible  to  his  employee  for  the 
compensation  imposed  by  the  act. 

In  this  opinion  the  following  quota- 
tion is  found:  "The  line  is  sharply 
drawn,  however,  by  the  New  York  court 
of  appeals,  between  the  fellow-servant 
and  contributory-negligence  rules,  on  the 
one  hand,  and  the  rule  that  fault  on  the 
part  of  the  employer  must  be  shown,  on 
the  other.  Why  this  distinction1?  Is 
the  latter  doctrine  any  more  sacred  or 
inherently  necessary  than  either  of  the 
former?  Under  the  common  law  the 
L.R.A.1916A. 


burden  of  industrial  accident,  where  no 
fault  was  attributable  to  employer  or 
workman,  fell  on  the  workman.  Under 
the  new  law  it  falls,  primarily,  at  least, 
on  the  employer.  It  cannot  be  said  that 
the  one  rule  or  the  other  is  a  necessary 
or  logical  result  of  fundamental  prin- 
ciples of  justice.  The  very  trend  of 
legislation  exemplified  by  the  act  before 
us  illustrates  how  general  is  the  belief 
that  an  enlightened  conception  of  jus- 
tice requires  that  the  old  rule  be  super- 
seded by  the  new.  There  is  nothing 
contrary  to  the  permanent  and  under- 
lying notions  of  human  right  in  the  dec- 
laration that  he  who  is  conducting  an 
enterprise,  in  the  operation  of  which 
injury  to  others  is  likely  to  occur,  shall 
respond  for  such  injury  to  those  who 
have  not,  by  their  own  wilful  miscon- 
duct, brought  it  upon  themselves." 

Three  justices  took  the  view,  however, 
that  if  the  act  provided  nothing  more 
than  that  the  damages  suffered  by  the 
employee  entirely  from  his  own  fault 
should  be  wholly  paid  by  his  blameless 
employer,  the  means  for  remedying  the 
public  evil  would  be  oppressive  and  un- 
reasonable, and  that  the  law  so  de- 
claring would  be  invalid;  but  that  the 
law  in  question  was  valid  because  it  pro- 
ceeded to  establish  a  state  compensation 
insurance  fund  out  of  which  such  dam- 
ages might  be  paid,  and  to  which  the 
employer  might  resort  for  his  protec- 
tion. 

But  Henshaw,  J.,  held  that  the  act  was 
invalid  in  that  it  imposed  liability  upon 
the  employers  who  had  been  guilty  of  no 
breach  of  duty.  The  learned  justice 
agreed  on  the  one  hand  with  the  deci- 
sion of  the  New  York  court  of  appeals 
in  the  Ives  Case,  and  on  the  other  hand 
with  the  supreme  court  of  Washington 
in  the  Clausen  Case.  His  position  was 
that  the  New  York  court  was  unques- 
tionably right,  while  the  Washington  act 
could  be  supported  inasmuch  as  it  ap- 
plied to  hazardous  employments  only, 
and  that  as  there  was  no  constitutional 
amendment  of  that  state  upon  which 
the  act  was  based,  it  could  be  referred 
to  the  police  power  of  the  state,  and  as 
it  was  a  reasonable  provision,  it  could 
be  sustained  simply  upon  the  ground  of 
its  reasonableness  as  a  method  of  the 
exercise  of  the  police  power. 

In  the  opinion  in  which  the  California 
act  in  its  entirety  was  upheld  (and  ap- 
parently the  majority  of  the  court  agrees 
with  these  views),  it  is  said  that  the 
compulsory  act  of  that  state  was  not 
invalid  because  it  did  not,  like  some  of 
the  other  compulsory  statutes,  limit  the 


422 


WORKMEN'S  COMPENSATION. 


newly  created  scheme  of  compensation 
to  specially  enumerated  industries  se- 
lected as  and  declared  to  be  extrahazard- 
ous  in  character.  And  it  was  further 
said  that  there  was  not  any  distinction 
so  far  as  constitutional  objections  are 
concerned  that  could  be  based  upon  the 
fact  that  the  California  act  imposes  up- 
on the  employer  a  liability  to  compen- 
sate his  employees  for  injuries  actually 
received  in  a  particular  employment, 
while  other  statutes,  as,  for  example, 
that  of  Washington,  require  employers 
to  contribute  sums  proportioned  to  their 
pay  roll,  and  graduated  according  to  the 
nature  of  the  industry,  into  a  fund  out 
of  which  all  claims  for  compensation  are 
to  be  paid.  The  court  said:  "The  es- 
sential question  is  whether  liability  for 
injury  suffered  by  employees  through 
accident  may  be  imposed  upon  employers 
who  have  been  guilty  of  no  breach  of 
duty.  Once  this  question  is  answered  in 
the  affirmative,  the  mode  of  imposing  the 
liability,  whether  it  be  by  way  of  a  pro- 
portionate contribution  having  some  of 
the  characteristics  of  a  tax,  or  by  fixing 
a  direct  liability  upon  each  employer  for 
each  accident  as  it  occurs,  is  a  matter 
for  legislative  determination." 

Although  the  Iowa  statute  is  optional, 
and  consequently  any  discussion  with 
reference  to  that  act  is  not  authority 
upon  this  point,  some  expressions  of  the 
Iowa  supreme  court  clearly  indicate  that 
a  compulsory  industrial  insurance  act 
would  be  sustained  against  the  conten- 
tion that  it  took  property  without  due 
process  of  law.  In  Hunter  v.  Colfax 
Consol.  Coal  Co.  (1915)  —  Iowa,  — , 
L.R.A.— ,  — ,  154  N.  W.  1037,  the  lower 
court  had  taken  the  view  that  the  stat- 
ute cut  off  from  an  employer  who  elect- 
ed not  to  come  in  under  the  act,  the 
privilege  of  showing  that  he  had  not 
been  at  fault.  The  language  of  the  stat- 
ute is  ambiguous,  and  the  supreme  court 
held  that  the  lower  court  was  in  error 
in  so  holding,  and  that  had  the  statute 
taken  away  that  privilege,  it  would  have 
been  unconstitutional.  The  court  took 
the  position,  however,  that  if  the  act 
were  compulsory,  and  should  work  an 
involuntary  taxation  on  the  employer,  it 
would  not  be  unconstitutional,  since  a 
scheme  of  insurance  to  secure  injured 
workmen  and  their  dependents  from  be- 
coming objects  of  charity  is  for  the  pub- 
lic benefit  in  that  it  protects  the  public 
from  the  indirect  charge  levied  upon 
it  through  the  medium  of  litigation,  sup- 
port of  the  poor,  etc.,  caused  by  the  in- 
dustrial loss.  The  court  said:  "Its 
requirement  in  case  of  acceptance  con- 
L.R.A.1916A. 


stitutes  a  proper  exercise  of  the  police 
power, — such  exercise  of  it  as  would  sus- 
tain compulsory  acceptance." 

In  concluding  this  portion  of  the  an- 
notation, the  suggestion  may  be  made 
that,  in  view  of  the  decisions  of  the 
Supreme  Court  of  the  United  States  and 
of  the  highest  courts  of  Washington, 
Montana,  New  York,  and  California,  up- 
holding compensation  acts  taking  the 
form  of  industrial  insurance  acts,  and 
in  view  of  the  general  disposition  of  the 
courts  to  recognize  the  weight  of  the  ar- 
gument of  the  New  York  court  in  the 
Ives  Case,  it  is  probable  that  workmen's 
compensation  acts  of  the  future  will  very 
generally  provide  for  industrial  insur- 
ance rather  than  for  direct  liability. 

It  is  also  well  to  bear  in  mind  that 
both  the  direct  liability  statutes  and  the 
insurance  statutes  do  take  the  property 
of  an  employer  who  is  without  fault,  and 
devote  it  to  private  purposes.  As  a  mat- 
ter of  policy,  the  latter  statutes  may  be 
the  more  desirable  or  justifiable,  but 
nevertheless  there  is,  even  in  those  stat- 
utes, a  "taking."  This  can  only  be  justi- 
fied as  an  exercise  of  the  police  power 
of  the  state,  and  in  the  exercise  of  this 
power  in  the  passage  and  enforcement 
of  these  statutes,  the  courts  and  legis- 
latures will  be  continually  confronted 
with  what  is  probably  the  most  funda- 
mental principle  of  our  government, — 
namely,  a  person's  property  may  not  be 
taken  without  due  process  of  law. 

Class  legislation. 

The  statutes  have  been  upheld  against 
the  contention  that  they  are  class  legis- 
lation, this  objection  being  based  on  sev- 
eral different  grounds. 

The  Washington  act  is  not  invalid  as 
class  legislation  because  the  fund  col- 
lected by  assessments  of  uncertain 
hazardous  businesses  is  to  be  expended 
in  the  relief  of  employees  of  such  busi- 
nesses instead  of  being  applied  to  the 
relief  of  workmen  generally,  or  to  the 
use  of  the  state  at  large.  State  ex  rel. 
Davis-Smith  Co.  v.  Clausen  (1911)  65 
Wash.  156,  37  L.R.A.(N.S.)  466, 117  Pac. 
1101,  2  N.  C.  C.  A.  823,  3  N.  C.  C.  A. 
599. 

The  Ohio  statute  does  not  make  an 
unlawful  discrimination  in  providing 
that  the  state  and  each  county,  city,  vil- 
lage, school  district,  or  other  taxing  dis- 
trict, shall  pay  1  per  cent  of  the  amount 
paid  for  services  of  employees  during 
the  last  fiscal  year  into  the  state  insur- 
ance fund,  while  all  other  persons  and 
corporations  subject  to  the  operation  of 
the  act  shall  pay  into  the  fund  semi- 
annually  the  amount  of  premium  deter- 


CONSTITUTIONALITY  OF  STATUTE. 


423 


mined  and  fixed  by  the  state  Liability 
Board  of  Awards,  for  the  employment  or 
occupation  of  such  employer.  Porter  v. 
Hopkins  (1914)  —  Ohio  St.  — ,  109  N.  E. 
629. 

In  a  number  of  cases  it  has  been  held 
that  the  statutes  are  not  objectionable 
as  class  legislation  because  they  apply 
only  to  employers  employing  a  certain 
number  or  more  of  employees. 

Employers  having  five  or  more  em- 
ployees are  not  denied  the  equal  pro- 
tection of  the  laws  because  their  failure 
to  comply  with  the  terms  of  the  Ohio 
workmen's  compensation  act  by  paying 
into  the  state  insurance  fund  thereby 
•created,  the  premiums  required  by  that 
act,  deprives  them,  in  actions  for  dam- 
ages, brought  by  their  injured  em- 
ployees, of  the  defenses  of  contributory 
negligence,  assumed  risk,  and  the  negli- 
gence of  fellow  servants,  while  those 
employing  four  or  less  employees  are 
privileged  to  make  either  or  all  of  these 
defenses.  Jeffrey  Mfg.  Co.  v.  Blagg 
(1914)  235  U.  S.  571,  59  L.  ed.  364,  35 
Sup.  Ct.  Rep.  167,  7  N.  C.  C.  A.  570, 
affirming  90  Ohio  St.  376,  108  N.  E.  465. 

The  Ohio  statute  is  not  void  as  making 
an  arbitrary  classification,  since  the 
risks  of  any  regular  employment  are  less 
and  the  opportunity  for  avoiding  them 
better  where  an  employee  is  one  of  four, 
than  when  the  number  of  employees  is 
larger.  State  ex  rel.  Yaple  v.  Creamer 
(1912)  85  Ohio  St.  349,  39  L.R.A.(N.S.) 
694,  97  N.  E.  602,  1  N.  C.  C.  A.  30. 

The  Kansas  act  is  not  invalid  as  classi- 
fying employers  with  reference  to  the 
number  of  employees.  Shade  v.  Ash 
Grove  Lime  &  Portland  Cement  Co. 
(1914)  93  Kan.  257,  144  Pac.  249. 

A  statute  is  not  invalid  for  unconsti- 
tutional discrimination,  which  abolishes 
the  doctrines  of  fellow  service  and  as- 
sumption of  risk  in  actions  to  hold  em- 
ployers liable  for  negligent  injuries  to 
their  employees,  except  in  cases  of  per- 
sons employing  less  than  four  servants. 
Borgnis  v.  Falk  Co.  (1911)  147  Wis.  327, 
37  L.R.A.(N.S.)  489,  133  N.  W.  209,  3 
N.  C.  C.  A.  649.  The  court  said :  "The 
man  who  is  employed  with  one  or  two 
other  men  in  a  given  employment  in  all 
reasonable  probability  knows  their  char- 
acteristics well,  and  will  probably  be 
with  them  a  great  part  of  the  time.  He 
will  have  ample  opportunity  to  form  a 
just  judgment  as  to  the  risk  of  injury 
from  their  negligence  which  he  will  run 
if  he  works  with  them,  and  will  be  en- 
abled to  shape  his  own  conduct  accord- 
ingly; but  the  man  who  is  one  of  a  large 
number  of  men,  many  of  whom  he  never 
L.R.A.1916A. 


sees,  and  some  of  these  latter  having 
duties  to  perform  in  distant  places,  upon 
the  due  performance  of  which  his  own 
safety  depends,  has  no  opportunity  to 
acquire  any  accurate  knowledge  of  the 
•characteristics  of  many  of  his  fellow 
workmen,  and  cannot  intelligently  decide 
what  risk  he  runs  at  the  hands  of  such 
distant  and  unknown  employees.  The 
difference  in  situation  is  not  merely 
fanciful;  it  is  real.  In  one  case  the  em- 
ployee knows  or  has  the  means  of  know- 
ing what  to  expect  from  his  colaborers; 
in  the  other  case,  he  has  neither  the 
knowledge  nor  the  means  of  knowledge." 

That  a  classification  of  employments 
into  hazardous  and  nonhazardous  em- 
ployments is  not  arbitrary  is  well  set- 
tled. 

Thus,  the  application  of  a  police  meas- 
ure to  the  work  of  erection  or  demolition 
of  structures  having  iron  or  steel  frame- 
work, operation  of  elevators  in  con- 
structing or  demolishing  buildings,  work 
on  scaffolds  or  about  electrical  current 
or  explosives,  the  operation  of  railroads, 
the  construction  of  tunnels,  and  work 
carried  on  under  compressed  air,  is  not 
a  denial  of  the  equal  protection  of  the 
law,  as  being  an  arbitrary  classification. 
Ives  v.  South  Buffalo  R.  Co.  (1911)  201 
N.  Y.  271,  34  L.R.A.(N.S.)  162,  94  N.  E. 
431,  Ann.  Cas.  1912B,  156,  1  N.  C.  C.  A. 
517. 

So,  the  Illinois  workmen's  compensa- 
tion act  of  1911  is  not  unconstitutional 
as  class  legislation  because  it  applies 
only  to  employees  in  hazardous  employ- 
ments. Deibeikis  v.  Link-Belt  Co. 
(1913)  261  IU.  454,  104  N.  E.  211,  Ann. 
Cas.  1915A,  241,  5  N.  C.  C.  A.  401.  The 
court  said:  "These  sections  are  meant 
to  exclude  anyone  who  may  be  occupy- 
ing a  mere  clerical  position  and  whose 
work  is  such  that  he  is  not  subject  to 
any  of  the  hazards  of  the  general  busi- 
ness in  which  the  employer  is  engaged. 
This  is  a  proper  and  reasonable  classifi- 
cation." 

And  the  Kansas  act  is  not  invalid  in 
classifying  occupations  with  reference  to 
the  nature  of  business.  Shade  v.  Ash 
Grove  Lime  &  Portland  Cement  Co. 
(Kan.)  supra. 

The  Montana  statute  is  not  unconsti- 
tutional as  class  legislation  because  it 
singles  out  the  hazardous  employment  of 
mining  and  subjects  it  to  burdens  not 
placed  upon  other  hazardous  employ- 
ments. Cunningham  v.  Northwestern 
Improv.  Co.  (1911)  44  Mont.  180,  119 
Pac.  554,  1  N.  C.  C.  A.  720. 

But  the  legislature  is  not  bound  to 
make  this  classification,  but  may  make 


424 


WORKMEN'S  COMPENSATION. 


the  statute  applicable  to  all  employ- 
ments. 

Thus,  the  Wisconsin  statute  is  not  in- 
valid in  taking  away  or  abolishing  the 
doctrine  of  assumption  -of  risk  and  fel- 
low service  in  the  case  of  nonhazardous 
trades  as  well  as  in  the  case  of  extra- 
hazardous  employments.  Borgnis  v. 
Falk  Co.  (Wis.)  supra.  The  court  said 
that  while  there  was  room  for  classifica- 
tion, it  did  not  follow  that  legislation 
without  the  classification  was  unconsti- 
tutional. 

The  express  exemption  of  certain  em- 
ployments, such  as  domestic  service  and 
farm  labor,  in  which  the  hazards  are 
very  slight,  is  not  an  arbitrary  classifica- 
tion. 

The  California  statute  is  not  uncon- 
stitutional as  making  an  unreasonable 
classification  by  excluding  from  the 
operation  of  the  act  casual  employees, 
and  employees  engaged  in  farm,  dairy, 
and  agricultural,  viticultural,  or  horti- 
cultural labor,  in  stock  or  poultry  rais- 
ing, or  household  domestic  service. 
Western  Indemnity  Co.  v.  Pillsbury 
(1915)  --  Cal.  — ,  151  Pac.  398.  The 
court  said:  "That  casual  employees 
form  a  special  class  which  might  fairly 
be  regarded  as  not  requiring  the  protec- 
tion of  the  new  law  is  obvious  enough, 
and  is  indeed  not  questioned  by  the  peti- 
tioner. A  more  serious  question  is  pre- 
sented by  the  exclusion  of  employees 
in  the  various  branches  of  agricultural 
pursuits  and  in  domestic  service.  But 
here,  too,  in  view  of  the  very  liberal 
rules  established  by  our  decisions  on  the 
legislative  power  of  classification,  it 
must  be  held  that  the  lawmaking  body 
might  reasonably  have  found  that  the 
conditions  of  agricultural  and  of  do- 
mestic employment  were  so  far  different 
from  those  surrounding  other  employ- 
ments as  to  justify  the  limiting  of  the 
new  compensation  law  to  these  other 
employments." 

The  Iowa  act  is  not  unconstitutional 
in  arbitrarily  excepting  from  the  opera- 
tion of  the  act  household  or  domestic 
servants,  farm  or  other  laborers  engaged 
in  agricultural  pursuits,  and  persons 
whose  employment  is  of  a  casual  nature. 
Hunter  v.  Coif  ax  Consol.  Coal  Co.  (1915) 
—  Iowa,  — ,  L.R.A.— ,  — ,  154  N.  W. 
1037. 

The  Massachusetts  act  is  not  uncon- 
stitutional as  exempting  domestic  serv- 
ants and  farm  laborers  from  its  provi- 
sions. Re  Opinion  of  Justices  (1911) 
209  Mass.  607,  96  N.  E.  308, 1  N.  C.  C.  A. 
557. 

The  Michigan  act  is  not  unconstitu- 
L.P.A.1916A. 


tional  in  that  it  exempts  household  serv- 
ants, farm  laborers,  and  casual  em- 
ployees from  its  provisions.  Mackin  v. 
Detroit-Timkin  Axle  Co.  (1915)  —  Mich. 
— ,  153  N.  W.  49.  The  court  said :  "The 
law  is  unquestionable  that  it  is  within 
the  power  of  the  legislature  to  classify 
both  employers  and  employees,  if  the 
classification  is  not  fanciful  or  arbi- 
trary, and  for  reasons  of  public  policy 
is  based  upon  substantial  distinctions, 
is  germane  to  the  object  sought  to  be 
accomplished  by  the  act,  not  limited  to 
existing  conditions  only,  and  applies  im- 
partially and  equally  to  each  member  of 
the  class." 

Excluding  domestic  servants,  farm  la- 
borers, casual  employees,  and  such  rail- 
roads and  railroad  employees  as  are 
engaged  in  interstate  commerce  from  the 
provisions  of  the  workmen's  compensa- 
tion act  does  not  render  it  unconstitu- 
tional as  class  legislation.  Mathison  v. 
Minneapolis  Street  R.  Co.  (1914)  126 
Minn.  286,  L.R.A.— ,  — ,  148  N.  W.  71,  5 
N.  C.  C.  A.  871. 

It  has  also  been  held  that  making 
different  provisions  for  those  employers 
who  do  accept  the  act,  and  those  who  do 
not,  is  not  unlawful. 

The  legislature,  in  putting  employers 
who  become  subject  to  pt.  2  of  the  act  in 
a  different  class  from  those  who  do  not, 
and  in  abrogating  the  defenses  of  con- 
|  tributory  negligence,  assumption  of  risk, 
!  and  coservice  in  actions  against  employ- 
ers who  do  not  accept  such  pt.  2,  and 
permitting  such  defenses  in  actions 
against  employers  who  do  accept  such 
pt.  2,  does  not  render  the  act  invalid  as 
class  legislation.  Mathison  v.  Minne- 
apolis Street  R.  Co.  (Minn.)  supra. 

A  statute  is  not  invalid  as  conferring 
unequal  privileges  and  immunities,  which 
abolishes  the  doctrines  of  assumption  of 
risk  and  fellow  service  in  actions  to  hold 
employers  liable  for  personal  injuries  to 
their  servants,  in  cases  where  employers 
refuse  to  take  advantage  of  the  act,  but 
preserves  them  intact  to  those  who  come 
under  the  law.  Borgnis  v.  Falk  Co. 
j  (Wis.)  supra.  The  court,  in  speaking  of 
the  distinction  between  an  employer  who 
accepts  the  terms  of  the  act  and  one  who 
does  not,  said:  "After  all,  there  is  an- 
other distinction  which  seems  perhaps 
more  satisfactory.  The  consenting  em- 
ployer has  done  his  share,  and  it  must 
be  considered  a  considerable  share,  in 
rendering  successful  the  legislative  at- 
tempt to  meet  and  solve  a  difficult  social 
and  economic  problem.  Even  if  it  be 
true  (which,  as  before  stated,  is  not  de- 
cided) that  he  may  not  be  compelled 


CONSTITUTIONALITY  OF  STATUTE. 


425 


under  our  Constitutions,  state  and  na- 
tional, to  assist  in  the  solution  of  this 
problem,  still  does  not  his  voluntary  act 
in  giving  that  assistance  constitute  a ' 
substantial  distinction,  making  a  real 
difference  of  situation  between  him  and 
the  employer  who  refuses  his  aid, — a 
difference  which  justifies  a  difference  in 
treatment  ?" 

Many  of  the  optional  statutes  provide 
that  in  case  the  employer  does  not  elect 
to  come  in  under  the  act,  he  will  be  de- 
prived of  the  common-law  defenses;  if 
the  employee  does  not  elect  to  come  in 
under  the  act,  these  defenses  will  be 
open  to  the  employer  against  the  em- 
ployee. The  employee  must  meet  these 
defenses  under  these  existing  laws,  so 
that  it  would  appear  that  while  an  em- 
ployer who  does  not  accept  the  act  is 
not  in  as  good  a  situation  as  under  the 
prevailing  laws,  nothing  is  taken  away 
from  the  employee  who  refuses  to  ac- 
cept the  act,  but  he  is  in  precisely  the 
same  situation  as  under  the  existing 
laws.  That  this  is  an  unjust  discrimi- 
nation against  the  employer  has  been 
contended  in  one  case,  but  the  court 
overruled  the  contention. 

Thus,  the  Iowa  act  is  not  void  as  con- 
taining improper  classifications  and  arbi- 
trary differentiations  in  that  the  penal- 
ties imposed  upon  the  master  and  the 
servants  for  rejecting  the  act  are  not 
precisely  the  same.  Hunter  v.  Colfax 
Consol.  Coal  Co.  (Iowa)  supra. 

Delegation  of  powers. 

The  optional  acts  are  not  unconstitu- 
tional as  containing  an  invalid  delega- 
tion of  judicial  power  to  the  administra- 
tive board  and  officers  created  to  enforce 
the  act.  Hunter  v.  Colfax  Consol.  Coal 
Co.  (Iowa)  and  Mackin  v.  Detrbit-Tim- 
kin  Axle  Co.  (Mich.)  supra;  Deibeikis 
v.  Link-Belt  Co.  (1915)  261  HI.  454,  104 
N.  E.  211,  Ann.  Cas.  1915A,  241,  5  N.  C. 
C.  A.  401. 

Providing  for  the  submission  to  an 
administrative  board  of  the  questions  of 
fact  in  case  of  a  dispute  as  to  the 
amount  to  be  awarded  an  injured  em- 
ployee under  a  workmen's  compensation 
act,  which  has  power  to  award  the 
amount  due  as  provided  by  the  statute, 
which  award,  under  certain  circum- 
stances, may  be  reviewed  by  the  courts, 
does  not,  where  the  jurisdiction  of  the 
Commission  depends  on  the  consent  of 
parties,  and  the  question  of  consent  is 
subject  to  review  by  the  courts,  render 
the  Commission  a  court,  and  the  statute 
void  on  the  theory  that  the  legislature 
has  no  constitutional  power  to  create 
L.R.A.1916A. 


courts.  Borgnis  v.  Falk  Co.  (Wis.)  su- 
pra. 

The  Ohio  act  does  not  delegate  judi- 
cial power  to  the  board  of  awards;  it 
is  merely  an  administrative  agency  to 
bring  into  being  and  administer  the  in- 
surance fund;  and  the  fact  that  it  is 
empowered  to  classify  persons  to  come 
under  the  law,  and  to  ascertain  facts  as 
to  the  application  of  the  fund,  does  not 
vest  it  with  judicial  power  within  the 
constitutional  sense.  State  ex  rel.  Yaple 
v.  Creamer  (1912)  85  Ohio  St.  349,  39 
L.R.A.(N.S.)  694,  97  N.  E.  602,  1  N.  C. 
C.  A.  30. 

And  it  has  been  held  that  the  compul- 
sory acts  of  Washington  and  Montana 
are  not  unconstitutional  as  delegating 
judicial  power  to  administrative  bodies 
or  officials,  since  if,  as  the  court  had 
decided,  the  acts  in  the  substantive  por- 
tion were  constitutional,  then  the  method 
of  carrying  them  into  effect  must  also  be 
considered  as  valid. 

Thus,  the  Washington  act  is  not  un- 
constitutional in  delegating  judicial  pow- 
ers to  the  Industrial  Insurance  Commis- 
sion. State  v.  Mountain  Timber  Co. 
(1913)  75  Wash.  581,  L.R.A.— ,  — ,  135 
Pac.  645,  4  N.  C.  C.  A.  811.  The  court 
said :  "To  uphold  the  law  in  the  sense 
of  sustaining  the  idea  of  industrial  in- 
surance, and  to  deny  the  right  of  execut- 
ing it  without  the  intervention  of  the 
courts,  would  throw  us  back  on  the  origi- 
nal ground,  and  we  should  then,  if  con- 
sistent, hold  the  idea  of  industrial  in- 
surance to  be  beyond  the  limit  of  the 
police  power." 

So,  in  Cunningham  v.  Northwestern 
Improv.  So.  (1911)  44  Mont.  180, 119  Pac. 
554,  1  N.  C.  C.  A.  720,  it  was  held  that 
the  act  did  not  delegate  judicial  powers 
to  the  state  auditor  in  intrusting  the  col- 
lection and  distribution  of  the  insurance 
fund  to  him.  The  court  said:  "Regard- 
ed as  an  act  to  provide  a  fund  for  the 
benefit  of  certain  employees  and  their 
dependents  who  would  otherwise  be  rem- 
ediless we  have  no  doubt  that  it  is  with- 
in the  power  of  the  legislative  assembly 
to  intrust  the  administration  of  the  fund 
to  such  official  as  it  may  see  fit."  The 
court  further  said :  "If  the  tax  provided 
for  in  the  act  can  legally  be  exacted 
from  the  employer,  and,  as  is  the  case, 
the  acceptance  of  its  benefits  by  the 
claimant  ipso  facto  operates  to  release 
the  employer  from  liability,  it  is  difficult 
to  see  how  the  latter  has  any  further 
concern  in  the  matter  of  the  distribution 
of  the  fund  than  to  be  assured,  as  the 
act  provides  he  may  be,  that  it  is  not 
paid  out  on  improper  or  fraudulent 


426 


WORKMEN'S  COMPENSATION. 


claims.  If  the  summary  method  of  ad- 
ministration provided  may  not  be  resort- 
ed to,  then  one  of  the  paramount  reasons 
for  this  class  of  legislation  must  be  en- 
tirely eliminated  from  consideration." 

Impairment  of  contract  obligations. 

No  contract  right  is  impaired  by  mak- 
ing applicable  to  existing  contracts  which 
are  to  terminate  in  the  future,  an  em- 
ployees' indemnity  act  which  gives  the 
employees  an  option  to  take  advantage 
of  it,  or  to  stand  on  their  common-law 
right,  under  the  contract,  to  maintain  an 
action  to  redress  an  injury  received  in 
the  employment.  Borgnis  v.  Falk  Co. 
(Wis.)  supra. 

A  similar  decision  was  rendered  in 
Troth  v.  Millville  Bottle  Works  (1914) 
86  N.  J.  L.  558,  91  Atl.  1031. 

The  Minnesota  statute,  as  applied  to 
a  contract  of  employment  existing  at  the 
time  when  it  came  into  existence,  is  not 
unconstitutional  as  impairing  the  obliga- 
tion of  such  contract.  State  ex  rel.  Nel- 
son-Spelliscy  Implement  Co.  v.  District 
Ct.  (1915)  128  Minn.  221,  150  N.  W. 
623,  following  Mathison  v.  Minneapolis 
Street  R.  Co.  126  Minn.  286,  L.R.A.  — , 
— ,  148  N.  W.  71,  5  N.  C.  C.  A.  871. 

The  supplement  to  the  main  act  which 
was  passed  and  approved  on  May  2d, 
1911,  and  which  provided  that  every  con- 
tract of  hiring  now  in  operation,  or  made 
or  implied  prior  to  the  time  limited  for 
the  act  to  which  the  act  is  a  supplement 
to  take  effect  (July  4th,  1911),  shall, 
after  this  act  takes  effect,  be  presumed 
to  continue  subject  to  the  provisions  of 
§  2  of  the  act,  is  not  unconstitutional  as 
impairing  the  obligations  of  a  pre-exist- 
ing contract,  where  the  contract  in  ques- 
tion was  entered  into  on  the  23d  day  of 
May,  and  the  injury  occurred  at  5  o'clock 
in  the  afternoon  of  July  4th.  Sexton  v. 
Newark  Dist.  Teleg.  Co.  (1913)  84  N.  J. 
L.  85,  86  Atl.  451,  3  N.  C.  C.  A.  569. 

The  Iowa  statute  is  not  unconstitu- 
tional as  impairing  existing  contracts, 
since  it,  by  its  terms,  does  not  purport 
to  cover  existing  contracts.  Hunter  v. 
Coif  ax  Consol.  Coal  Co.  (1915)  —  Iowa, 
—  L.R.A.— ,  — ,  154  N.  W.  1037. 

The  Ohio  statute  does  not  impair  the 
obligations  of  contracts,  since  it  does 
not  affect  contracts  in  existence  and  un- 
expired  at  the  time  it  is  put  into  opera- 
tion by  the  employer.  State  ex  rel. 
Yaple  v.  Creamer  (Ohio)  supra. 

But  the  Washington  court  has  held 
that  the  Washington  act,  although  com- 
pulsory, is  not  unconstitutional  as  ap- 
plied to  'hazardous  employment,  per- 
formed under  contract  entered  into  prior 
to  the  time  that  the  act  went  into  effect, 
L.R.A.1916A. 


since  all  contracts  are  subject  to  the 
police  power  of  the  state.  State  ex  rel. 
Pratt  v.  Seattle  (1913)  73  Wash.  396, 
132  Pac.  45. 

Right  to  contract. 

The  free  right  to  contract  is  not  taken 
away  by  the  optional  acts. 

-  Thus,  the  Illinois  workmen's  compensa- 
tion act  of  1911,  being  elective,  and  not 
compulsory,  does  not  deprive  the  em- 
ployee of  his  right  to  contract  and  his 
natural  right  of  waiver.  Deibeikis  v. 
Link-Belt  Co.  (1913)  261  I1L  454,  104 
N.  E.  211,  Ann.  Cas.  1915A,  241,  5  N. 
C.  C.  A.  401. 

The  provisions  in  the  Michigan  act, 
making  attorneys'  and  physicians'  fees 
in  accident  claims  adjusted  under  its 
provisions  subject  to  the  approval  of  the 
Industrial  Accident  Board,  and  provid- 
ing that  no  payment  under  this  act  shall 
be  assignable  or  subject  to  attachment  or 
garnishment,  or  be  held  in  any  way  for 
any  debt,  is  not  unconstitutional  as  lim- 
iting the  right  of  contract  in  preventing 
the  injured  person  from  employing  an 
attorney  of  his  own  choosing.  Mackin 
v.  Detroit-Timkin  Axle  Co.  (1915)  - 
Mich.  — ,  153  N.  W.  49.  The  court  said : 
"These  restrictions  in  the  act  as  applied 
to  those  who  submit  to  its  provisions  by 
election  certainly  cannot  be  held  uncon- 
stitutional. They  were  deemed  by  the 
legislature  proper  and  necessary  to  safe- 
guard the  interests  of  the  class  for  whose 
benefit  largely  this  act  to  'promote  the 
welfare  of  the  people  of  the  state'  was 
passed;  they  are  germane  to  the  purpose 
of  the  act,  and,  in  the  light  of  conditions 
previously  existing  in  litigation  over 
personal  injuries  to  workmen  of  which 
courts  of  last  resort  have  taken  judicial 
notice  in  construing  workmen's  compen- 
sation acts,  are  beneficial  and  appropri- 
ate, if  not  essential,  to  an  efficient  ad- 
ministration of  the  law." 

Right  to  trial  by  jury. 

Optional  acts  are  not  unconstitutional 
as  denying  the  employee  a  right  to  trial 
by  jury.  Young  v.  Duncan  (1914)  218 
Mass.  346,  106  N.  E.  1;  Hunter  v.  Col- 
fax  Consol.  Coal  Co.  (1915)  —  Iowa,  — , 
L.R.A.— ,  — ,  154  N.  W.  1037;  Sexton 
v.  Newark  Dist.  Teleg.  Co.  (1913)  84 
N.  J.  L.  85,  86  Atl.  451,  3  N.  C.  C.  A. 
569. 

In  the  latter  case,  the  court  said: 
"Either  party  to  the  contract  of  hiring 
may  preserve  his  right  to  trial  by  jury 
by  electing  to  stand  upon  the  provisions 
of  $  1  of  the  act.  If  he  chooses,  on  the 
contrary,  to  stand  upon  the  provisions  of 
§  2  of  the  act  by  not  giving  notice  or 


CONSTITUTIONALITY  OF  STATUTE. 


427 


entering  into  an  express  stipulation  in 
accordance  with  its  terms,  he  has  that 
option,  and  by  exercising  it  by  implica- 
tion waives  his  right  to  a  trial  by  jury." 

Trial  by  jury  may  be  waived.  Haw- 
kins v.  Bleakley  (1914)  220  Fed.  378. 

The  Illinois  workmen's  compensation 
act  of  1911  is  not  invalid  as  depriving 
an  employee  of  a  right  to  trial  by  jury, 
since  either  party  being  aggrieved  at  the 
award  of  the  board  of  arbitrators  has 
the  right  to  appeal  to  the  courts  of  rec- 
ord, where  the  matter  is  heard  de  novo, 
and  where  either  party  has  a  right  to 
demand  a  trial  by  jury.  Deibeikis  v. 
Link-Belt  Co.  (HL)  supra. 

The  Ohio  act  does  not  deny  re- 
course to  the  courts  and  trial  by  jury; 
if  an  employee  elects  to  come  in  under 
the  act,  his  agreement  binds  him  in  ad- 
vance to  submit  questions  of  amount, 
etc.,  to  some  tribunal  other  than  the 
court,  and  if  the  board  denies  the  claim- 
ant's right  to  participate  in  the  fund  on 
any  ground  going  to  the  basis  of  his 
claim,  he  may,  by  filing  an  appeal  and 
petition  in  the  ordinary  form,  be  en- 
titled to  trial  by  jury,  the  case  proceed- 
ing as  any  other  suit.  State  ex  rel. 
Yaple  v.  Creamer  (Ohio)  supra. 

The  Iowa  act  is  not  unconstitutional 
in  fixing  with  certainty  the  damages  to 
be  allowed  in  cases  of  specific  injuries, 
such  as  the  loss  of  an  arm,  leg,  or  eye. 
Hawkins  v.  Bleakley  (Fed.)  supra.  The 
court  said  that  many  of  the  states  for 
many  years  had  had  statutes  fixing  the 
liability  with  precision  in  cases  of  deaths, 
and  in  no  case  has  any  court  held  such 
statute  invalid. 

But  in  Ives  v.  South  Buffalo  R.  Co. 
(1911)  201  N.  Y.  271,  34  L.R.A.(N.S.) 
162,  94  N.  E.  431,  Ann.  Gas.  1912B,  156, 
1  N.  C.  C.  A.  517,  the  question  whether 
the  provision  in  the  New  York  statute 
fixing  the  amount  which  the  employer 
was  to  pay  in  cases  in  which  he  was 
liable  to  compensation  was  raised,  but 
as  there  was  a  conflict  in  the  views  of 
the  members  of  the  court,  and  as  the 
decision  of  this  question  was  not  neces- 
sary for  the  disposition  of  the  case,  it 
was  not  decided. 

So,  too,  it  has  been  held  that  the  com- 
pulsory acts  of  Washington  and  Mon- 
tana were  not  unconstitutional  as  deny- 
ing trial  by  jury. 

The  Washington  act  is  not  unconsti- 
tutional as  taking  away  the  right  of  trial 
by  jury  guaranteed  by  the  Federal  Con- 
stitution, since  that  provision  has  no  ap- 
plication to  state  courts  or  to  prosecu- 
tions for  the  violation  of  state  laws. 
State  v.  Mountain  Timber  Co.  (1913)  75 
L.R.A.1916A. 


Wash.  581,  L.R.A.— ,  — ,  135  Pac.  645, 
4  N.  C.  C.  A.  811. 

A  statute  fixing  an  indemnity  to  be 
awarded  employees  injured  in  hazardous 
occupations,  to  be  administered  by  a 
commission,  is  not  invalid  as  interfer- 
ing with  the  right  to  trial  by  jury.  State 
ex  rel.  Davis-Smith  Co.  v.  Clausen  (1911) 
65  Wash.  156,  37  L.R.A.(N.S.)  466,  117 
Pac.  1101,  2  N.  C.  C.  A.  823,  3  N.  C.  C.  A. 
599. 

The  right  of  trial  by  jury  is  not  in- 
fringed by  the  Montana  statute;  since 
the  right  to  such  trial  by  jury  as  was 
guaranteed  by  the  Federal  Constitution 
does  not  apply  to  state  courts;  and  the 
right  to  trial  by  jury  guaranteed  by  the 
Montana  Constitution  refers  to  the  trial 
of  cases,  actions,  or  suits  at  law,  and  has 
no  reference  to  claims  against  an  indem- 
nity fund,  such  as  was  provided  for  by 
the  Montana  act.  Cunningham  v.  North- 
western Improv.  Co.  (1911)  44  Mont. 
180,  119  Pac.  554,  1  N.  C.  C.  A.  720. 
Illegal  use  of  taxing  power. 

The  insurance  scheme  of  the  Iowa  act 
is  not  invalid  as  an  unauthorized  use  of 
the  taxing  power,  since  the  act  is  op- 
tional. Hunter  v.  Colfax  Consol.  Coal 
Co.  (1915)  —  Iowa,  — ,  L.R.A.— ,  — , 
154  N.  W.  1037. 

The  Montana  act,  in  imposing  a  tax 
for  the  purpose  of  paying  compensation 
to  injured  employees  in  the  coal  mining 
industry,  imposes  it  for  a  "public  pur- 
pose notwithstanding  the  only  benefi- 
ciaries thereof  were  the  employees  of  the 
coal  mines."  Cunningham  v.  Northwest- 
ern Improv.  Co.  (Mont.)  supra. 

In  a  number  of  the  so-called  optional 
acts,  the  statute  is  made  compulsory  as 
to  employees  of  the  state  and  the  politi- 
cal divisions  thereof.  In  some  cases  the 
contention  has  been  made  that  to  re- 
quire the  state  or  its  divisions  to  pay 
compensation  for  injuries  to  employees 
is  a  devotion  of  money  paid  by  taxation 
to  private  purposes,  but  this  contention 
has  not  prevailed. 

Requiring  municipal  corporations  to 
compensate  all  workmen  injured  in  their 
employ  does  not  require  taxes  to  be  levied 
for  other  than  public  purposes,  or  de- 
prive taxpayers  of  their  property  with- 
out due  process  of  law.  Borgnis  v.  Falk 
Co.  (1911)  147  Wis.  327,  37  L.R.A.(N.S.) 
489,  133  N.  W.  209,  3  N.  C.  C.  A.  649. 
•  The  Ohio  act  of  1913,  requiring  the 
state,  and  each  county,  city,  incorporated 
village,  school  district,  or  other  taxing 
district,  to  pay  into  the  state  compensa- 
tion fund  1  per  cent  of  the  amount  ex- 
pended by  such  state  or  division  thereof, 
for  services  of  employees  during  the  pre- 


428 


WORKMEN'S  COMPENSATION. 


ceding  fiscal  year,  is  not  invalid  as  di- 
verting public  funds  from  the  purpose 
for  which  they  were  levied  and  collected. 
Porter  v.  Hopkins  (1914)  —  Ohio  St.  — , 
109  N.  E.  629. 

An  assessment  levied  on  those  conduct- 
ing hazardous  occupations  to  provide  an 
indemnity  fund  for  their  employees  is 
not  within  the  constitutional  provision 
requiring  the  taxes  to  be  equal  and  uni- 
form, since  it  is  in  the  nature  of  a  license 
tax.  State  ex  rel.  Davis-Smith  Co.  v. 
Clausen  (Wash.)  supra. 

Miscellaneous    objections. 

The  Washington  workmen's  eompe'nsa- 
tion  act  is  not  unconstitutional  as  ap- 
plied to  interstate  commerce  by  water, 
since  Congress  has  in  no  way  legislated 
in  the  premises.  Stoll  v.  Pacific  Coast 
S.  S.  Co.  (1913)  295  Fed.  169. 

The  New  York  statute  is  not  violative 
of  the  Federal  Constitution  in  attempting 
directly  to  regulate  or  impose  a  tax  or 
burden  on  interstate  or  foreign  com- 
merce, since  it  merely  undertakes  to 
regulate  the  relation  between  employers 
and  employees  in  the  state.  JENSEN  v. 
SOUTHERN  P.  Co. 

As  to  the  limitation  of  the  applicabil- 
ity of  the  state  compensation  laws  by 
Federal  laws,  see  annotation,  post,  461. 

The  Illinois  workmen's  compensation 
act  of  1911  does  not  violate  the  inhibi- 
ion  of  the  Constitution  against  unreason- 
able search  and  seizure,  since  the  act  is 
elective,  and  not  compulsorv.  Deibeikis 
v.  Link-Belt  Co.  (1913)  26l"llL  454,  104 
N.  E.  211,  Ann.  Cas.  1915A,  241,  5  N.  C. 
C.  A.  401. 

In  Dragovich  v.  Iroquois  Iron  Co. 
(1915)  269  HL  478,  109  N.  E.  999,  it  was 
held  that  the  Illinois  act  was  not  uncon- 
stitutional as  being  passed  before  the 
amendments  thereto  were  actually  print- 
ed. 

An  employees'  compensation  act  is  not 
invalid  because  it  gives  the  employers 
the  right  to  determine  whether  or  not 
minors  rightfully  employed  by  them  shall 
have  the  benefit  of  the  act,  in  the  same 


way  that  they  determine  the  matter  for 
adult  employees.  Borgnis  v.  Falk  Co. 
(Wis.)  supra. 

The  provision  of  pt.  3,  $  15,  that  the 
association  in  which  the  employer  was 
insured,  and  which  paid  the  compensa- 
tion to  the  dependents,  may  enforce,  in 
the  name  of  the  employee,  or  its  own 
name,  for  its  own  benefit,  the  liability  of 
the  third  person  whose  negligence  caused 
the  injury,  is  not  beyond  the  power 
of  the  legislature  to  make,  since  the  asso- 
ciation was  equitably  entitled  to  the  re- 
covery. Turnquist  v.  Hannon  (1914)  219 
(Mass.)  560,  107  N.  E.  443. 

It  has  been  held  that  the  Texas  act  is 
not  contrary  to  the  public  policy  of  that 
state  (Memphis  Cotton  Oil  Co.  v.  Tolbert 
(1914)  —  Tex.  Civ.  App.  — ,  171  S.  W. 
309,  7  N.  C.  C.  A.  547) ;  and  that  the  act 
of  New  Jersey,  being  elective,  is  not  re- 
pugnant to  the  public  policy  of  New 
York  (Wasilewski  v.  Warner  Sugar  Re- 
finery Co.  (1914)  87  Misc.  156,  149  N.  Y. 
Supp.  1035). 

Such  parts  of  the  Kentucky  act  as 
take  from  the  personal  representative  or 
estate  of  the  deceased  employee,  who 
left  no  dependent  surviving  him,  any 
part  of  the  compensation  due  such  rep- 
resentative or  his  estate,  and  direct  its 
payment  into  the  workmen's  compensa- 
tion fund  for  the  benefit  of  other  people, 
is  a  violation  of  §  241  of  the  state  Con- 
stitution. KENTUCKY  STATE  JOURNAL 
Co.  v.  WORKMEN'S  COMPENSATION  BD. 

In  the  same  case  it  was  held  that  it 
was  within  the  power  and  right  of  an 
employee  to  waive  the  constitutional  pro- 
vision that  the  general  assembly  should 
have  no  power  to  limit  the  amount  to  be 
recovered  for  injuries  resulting  in  death, 
or  for  injuries  to  person  or  property,  and 
consequently  the  provision  of  the  com- 
pensation act  that  the  employer  and  em- 
ployee might  contract  to  accept  the  pro- 
visions of  the  act,  and  waive  any  cause 
of  action  which  the  employee  might  have 
had  against  his  employer,  was  not  uncon- 
stitutional. W.  M.  G. 


RHODE    ISLAND    SUPREME    COURT. 

MICHAEL  PENDAR 

v. 

H.    &    B.    AMERICAN    MACHINE    COM- 
PANY. 

(35   R.   I.   321,   87   Atl.   1.) 

Conflict  of  laws  —  injury  in  sister  state 
—  failure  to  preserve  rights  there. 

An  emplovee  cannot  maintain  an  action 
L.K.A.1916A. 


in  one  state  to  recover  damages  for  injuries 
received  in  another  state  where  the  contract 
of  employment  was  made,  if,  at  the  time  he 
entered  into  his  employment,  he  failed  to 
comply  with  the  requirements  of  the  local 
statutes  that  he  notify  the  employer,  who 
carried  an  employers'  liability  insurance 
policy,  that  he  intended  to  rely  on  his  corn- 


Note.  —  As  to  the  extraterritorial  juris- 
diction of  workmen's  compensation  stat- 
utes, and  conflict  of  laws  with  reference 
thereto,  see  annotation,  post,  443. 


PENDAR  v.  H.  &  B.  AMERICAN  MACH.  CO. 


429 


mon-law  rights,  which  failure  the  statute 
makes  a  waiver  of  the  right  to  maintain  a 
common-law  action. 

For  other  cases,  see  Conflict  of  Laics,  /.  e,  1, 
in  Dig.  1-52  N.  8. 

(June  11,  1913.) 

I7XCEPT1ONS  by  plaintiff  to  rulings  of 
H/  the  Superior  Court  for  Providence  and 
Bristol  Counties  made  during  the  trial  of 
an  action  brought  to  recover  damages  for 
personal  injuries  alleged  to  have  been  re- 
ceived by  plaintiff  while  an  employee  of  de- 
fendant, which  resulted  in  a  verdict  in  de- 
fendant's favor.  Overruled. 

The  facts  are  stated  in  the  opinion. 

Mr.   Thomas  L.    Carty  for  plaintiff. 

Messrs.  Boss  &  Barnefleld,  for  defend- 
ant: 

It  is  the  law  of  the  place  where  the  in- 
jury was  sustained,  and  not  the  law  of  the 
place  where  the  action  may  be  brought, 
which  alone  determines  whether  there  is  or 
is  not  any  right  of  action. 

O'Reilly  v.  New  York  &  N.  E.  R.  Co.  16 
R.  I.  388,  5  L.R.A.  364,  6  L.R.A.  719,  17 
Atl.  171,  906,  19  Atl.  244;  Alabama  G.  S. 
R.  Co.  v.  Carroll,  97  Ala.  126,  18  L.R.A. 
433,  38  Am.  St.  Rep.  163,  11  So.  803;  Bal- 
timore &  0.  S.  W.  R.  Co.  v.  Reed,  158  Ind. 
25,  56  L.R.A.  468,  92  Am.  St.  Rep.  293,  62 
N.  E.  488;  Louisville  &  N.  R.  Co.  v.  Whit- 
low, 105  Ky.  1,  41  L.R.A.  614,  43  S.  W.  711; 
Kimball  v.  Kimball,  75  N.  H.  291,  73  Atl. 
408;  Alexander  v.  Pennsylvania  Co.  48  Ohio 
St.  623,  30  N.  E.  69;  Beacham  v.  Ports- 
mouth Bridge,  68  N.  H.  382,  73  Am.  St. 
Rep.  607,  40  Atl.  1066;  Chicago,  R.  I.  &  P. 
R.  Co.  v.  Thompson,  100  Tex.  185,  7  L.R.A. 
(N.S.)  191,  123  Am.  St.  Rep.  798,  97  S.  W. 
459;  Boston  &  M.  R.  Co.  v.  Kurd,  56  L.R.A. 
193,  47  C.  C.  A.  615,  108  Fed.  116;  Chicago 
&  E.  I.  R.  Co.  v.  Rouse,  178  111.  132,  44  L.R.A. 
410,  52  N.  E.  951,  5  Am.  Neg.  Rep.  549; 
East  Tennessee,  V.  &  G.  R.  Co.  v.  Lewis,  89 
Tenn.  235,  14  S.  W.  603;  Albanese  v.  Stew- 
art, 78  Misc.  581,  138  N.  Y.  Supp.  942. 

The  Massachusetts  statute  bars  and  ex- 
tinguishes the  common-law  right  of  action 
which  otherwise  the  plaintiff  might  have 
had. 

Opinion  of  Justices,  209  Mass.  607,  96 
N.  E.  308,  1  N.  C.  C.  A.  557. 

Baker,  J.,  delivered  the  opinion  of  the 
court : 

This  is  an  action  at  common  law  brought 
by  Michael  Pendar,  of  Central  Falls,  in  this 
state,  against  the  H.  &  B.  American  Machine 
Company,  described  in  the  declaration  as  "a 
corporation  duly  created  and  having  a  usual 
place  of  business  in  the  city  of  Pawtucket, 
in  said  state."  The  declaration  alleges,  in 
L.R.A.1916A. 


substance,  that  on  the  20th  day  of  July, 
1912,  at  said  Pawtucket,  the  plaintiff,  while 
then  and  there  employed  by  the  defendant, 
and  while  then  and  there  in  the  performance 
of  his  duties  as  such  employee,  in  loading  or 
unloading  "a  certain  appliance,  machine,  or 
buggy,  so  called,"  and  while  in  the  exercise 
of  due  care,  was  injured  in  consequence  of 
the  negligence  of  the  defendant  corporation. 
The  declaration  contains  two  counts.  The 
first  alleges  the  buggy  to  be  unsafe;  the 
second,  that  the  floor  about  the  buggy  was 
unsafe.  To  the  declaration  the  defendant 
pleaded  the  general  issue,  and  also  a  special 
plea,  in  which  it  says  that  the  plaintiff 
ought  not  to  recover  because  "the  place 
where  said  plaintiff  was  employed  as  a  serv- 
ant by  said  defendant,  and  the  place  where 
said  plaintiff  entered  upon  and  continued 
his  said  employment  as  said  servant  of  said 
defendant,  and  the  place  where  the  plain- 
tiff's said  injuries,  as  alleged  in  the  two 
counts  of  his  said  declaration,  were  sus- 
tained, was  and  is  in  the  town  of  Attleboro, 
in  the  commonwealth  of  Massachusetts,  and 
not  within  the  limits  of  the  state  of  Rhode 
Island;  that  under  the  law  of  said  common- 
wealth of  Massachusetts,  in  force  at  the 
time  of  the  making  of  said  plaintiff's  said 
contract  of  employment,  and  also  in  force  at 
the  time  when  said  plaintiff's  said  injuries 
were  so  sustained,  if  an  employee  of  a  'sub- 
scriber' or  of  a  holder  of  an  insurance  policy 
in  a  liability  insurance  company  authorized 
to  do  business  in  said  Massachusetts,  in- 
suring the  employer's  liability  to  pay  com- 
pensation for  liabilities  as  provided  in  part 
2  of  chapter  751 -of  the  Acts  of  1911  of  the 
Massachusetts  legislature,  shall  not  have 
given  his  employer  at  the  time  of  his  con- 
tract of  hire  notice  in  writing  that  he  claimed 
the  right  of  action  at  common  law  to  recov- 
er damages  for  personal  injuries,  such  em- 
ployee shall  be  held  to  have  waived  his 
right  of  action  at  common  law;  that  at  the 
time  when  said  plaintiff  so  made  his  said 
contract  of  hire  with  said  defendant,  said 
defendant  was,  and  continued  to  be  up  to 
the  time  when  and  after  said  plaintiff  sus- 
tained his  said  injuries,  a  'subscriber'  and 
a  holder  of  an  insurance  policy  in  a  lia- 
bility insurance  company  so  authorized,  in- 
suring said  defendant's  liability  to  pay  said 
compensation  hereinbefore  referred  to;  that 
before  the  time  of  said  plaintiff's  said  con- 
tract of  hire,  the  said  defendant  posted 
printed  notice  that  it  had  provided  for  the 
payment  of  said  compensation  to  injured 
employees  at  one  of  the  principal  entrances 
to  said  defendant's  factory,  where  said  plain- 
tiff was  later  employed  as  aforesaid,  and  in 
each  room  thereof  where  labor  was  em- 
ployed, which  said  notice  said  defendant  so 


430 


WORKMEN'S  COMPENSATION. 


maintained  from  the  time  of  posting  thereof 
up  to  and  after  the  time  when  said  plain- 
tiff's said  injuries  were  sustained;  and  that 
said  plaintiff  at  the  time  of  his  said  con- 
tract of  hire,  nor  at  any  time  thereafter, 
did  not  give  to  said  defendant  notice  in 
writing  that  he  claimed  his  right  of  action 
at  common  law  to  recover  damages  for  per- 
sonal injuries." 

The  plaintiff  demurred  to  said  special 
plea,  and  stated  the  grounds  of  his  demurrer 
as  follows:  "(1)  That  so  far  as  appears  in 
or  by  said  plea  there  is  nothing  that  defeats 
the  jurisdiction  of  this  court  over  parties 
to  said  action.  (2)  That  so  far  as  appears 
in  or  by  said  plea  there  is  nothing  that  de- 
feats the  jurisdiction  of  this  court  over  the 
subject-matter  of  said  action.  (3)  That  so 
far  as  appears  in  or  by  said  plea  the  law  of 
the  commonwealth  of  Massachusetts  there- 
in referred  to  does  not  extinguish  the  plain- 
tiff's said  right  of  action.  (4)  That  so  far 
as  appears  in  or  by  said  plea  the  law  of  the 
commonwealth  of  Massachusetts  therein  re- 
ferred to  does  not  bar  the  plaintiff  from 
maintaining  his  said  action." 

And  in  the  event  that  said  demurrer 
should  be  overruled,  the  plaintiff  filed  his 
replication  to  said  plea,  setting  up  "that 
the  place  where  the  said  plaintiff  was  em- 
ployed as  a  servant  by  said  defendant,  and 
the  place  where  said  plaintiff  entered  upon 
and  continued  his  said  employment  as  said 
servant  of  said  defendant,  and  the  place 
where  the  said  injuries  as  alleged  in  the  two 
counts  of  his  said  declaration  were  sus- 
tained, was  and  is  within  the  limits  of  the 
state  of  Rhode  Island,  and"  not  in  the  com- 
monwealth of  Massachusetts." 

The  plaintiff's  demurrer  was  overruled, 
and  his  exception  noted.  Hearing  was  had 
on  the  replication  to  the  special  plea,  jury 
trial  being  waived,  and  there  was  decision 
for  defendant,  and  plaintiff  excepted  there- 
to. The  case  is  now  before  this  court  on 
plaintiff's  bill  of  exceptions,  which  contains 
only  the  exception  to  the  decision  overruling 
plaintiff's  said  demurrer. 

The  important  question  raised  by  the  de- 
murrer is  whether  the  Massachusetts  law 
pleaded  in  this  case,  as  applied  to  the  facts 
set  out  in  the  special  plea,  extinguishes  the 
plaintiff's  right  to  maintain  a  common-law 
action  for  the  injuries  received  by  him,  as 
alleged  in  his  declaration,  so  that  he  is 
barred  from  maintainng  the  present  action. 
It  is  the  law  of  this  state,  and  generally, 
that  the  law  of  the  place  where  the  injury 
was  received  determines  whether  a  right  of 
action  exists.  If  under  the  lex  loci  there  be 
a  right  of  action,  comity  permits  it  to  be 
prosecuted  in  another  jurisdiction ;  but  if 
under  the  lex  loci  no  right  of  action  is  creat- 
L.R.A.1916A. 


ed  or  exists,  then  it  exists  nowhere,  and  can 
be  prosecuted  in  no  jurisdiction.  This  doc- 
trine has  been  recognized  and  accepted  by 
this  court  in  the  case  of  O'Reilly  v.  New 
York  &  N.  E.  R.  Co.  16  R.  I.  388,  5  L.R.A. 
364,  6  L.R.A.  719,  17  Atl.  171,  906,  19  AtL 
244.  That  was  an  action  brought  for  an  in- 
jury received  in  Massachusetts  resulting  in 
death  through  defendant's  negligence.  It 
was  not  pleaded  that  the  action  survived 
under  the  law  of  Massachusetts.  The  court 
says:  "The  cause  of  action  accrued  in  Mas- 
sachusetts under  and  by  virtue  of  the  law 
in  force  there,  and  if  under  the  law  of  that 
state  the  action  no  longer  exists  there,  it 
no  longer  exists  here.  .  .  .  It  is  not 
strict  right,  but  comity,  which  enables  a 
person  who  has  been  tortiously  injured  in 
one  state,  to  sue  for  damages  for  the  injury 
in  another,  and,  of  course,  after  the  cause  of 
action  has  become  extinct  where  it  accrued,. 
it  cannot,  as  a  mere  matter  of  comity,  sur- 
vive elsewhere."  See  also  Connor  v.  New 
York,  N.  H.  &  H.  R.  Co.  28  R.  I.  560,  562, 18. 
L.R.A.(N.S.)  1252,  68  Atl.  48],  13  Ann.  Cas. 
1033.  This  has  been  generally  accepted  as- 
the  law  in  such  cases. 

In  Burns  v.  Grand  Rapids  &  I.  R.  Co.  113- 
Ind.  169,  at  page  176,  15  N.  E.  230,  the 
court  says:  "All  the  cases  agree  that,, 
whatever  the  law  of  the  forum  may  be,  the 
plaintiff's  case  must  stand,  if  at  all,  so  far 
as  his  right  of  action  is  concerned,  upon 
the  law  of  the  place  where  the  injury  oc- 
curred. .  .  .  Unless  the  alleged  wrongp 
was  actionable  in  the  jurisdiction  in  which 
it  was  committed,  there  is  no  cause  of  action 
which  can  be  carried  to  and  asserted  in  any 
other  jurisdiction."  See  also  Baltimore  & 
0.  S.  W.  R.  Co.  v.  Reed,  158  Ind.  25,  56- 
L.R.A.  468,  92  Am.  St.  Rep.  293,  62  N.  E. 
488;  Alabama  G.  S.  R.  Co.  v.  Carroll,  97  Ala. 
126,  18  L.R.A.  433,  38  Am.  St.  Rep.  163,  11 
So.  803;  Turner  v.  St.  Clair  Tunnel  Co.  Ill 
Mich.  578,  36  L.R.A.  134,  66  Am.  St.  Rep.. 
397,  70  N.  W.  146,  1  Am.  Neg.  Rep.  270; 
Chicago  &  E.  I.  R.  Co.  v.  Rouse,  178  111. 
132,  44  L.R.A.  410,  52  N.  E.  951,  5  Am.  Neg, 
Rep.  549 ;  Davis  v.  New  York  &  N.  E.  R.  Co. 
143  Mass.  301,  58  Am.  Rep.  138,  9  N.  E. 
815. 

The  situation  is  the  same,  although  the- 
act  or  omission  to  act  might  have  been  ac- 
tionable if  occurring  in  the  jurisdiction  of 
the  forum.  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Thompson,  100  Tex.  185,  7  L.R.A. (N.S.) 
191,  123  Am.  St.  Rep.  798,  97  S.  W.  459; 
Boston  &  M.  R.  Co.  v.  Hurd,  56  L.R.A.  196,. 
47  C.  C.  A.  615,  108  Fed.  116,  125.  The- 
exception  to  this  is  that  under  the  principles 
of  comity  an  action  will  not  be  permitted  to- 
be  prosecuted,  if  it  would  violate  the  pub- 
lic policy  of  the  forum. 


PENDAR  v.  H.  &  B.  AMERICAN  MACH.  CO. 


431 


It  is  obvious,  therefore,  that  the  right 
of  the  plaintiff  to  maintain  this  action  in 
Rhode  Island  is  determined  by  the  fact  as 
to  whether  or  not  he  has  such  right  in  Mas- 
sachusetts. The  demurrer  admits  the  law  of 
Massachusetts  to  be  correctly  pleaded,  and 
also  admits,  for  the  purpose  of  the  hearing, 
the  alleged  statement  of  facts  in  the  plea  to 
be  true.  Upon- such  admissions  it  is  evident 
that  the  plaintiff  has  waived  in  Massachu- 
setts his  right  to  bring  and  maintain  a  com- 
mon-law action  to  recover  for  the  injuries 
alleged  in  the  declaration,  by  failing  at  the 
time  of  his  said  hiring  to  give  notice  in  writ- 
ing to  the  defendant  that  he  claimed  his 
right  to  bring  such  action.  In  other  words, 
by  such  failure  to  give  notice  he  made  his 
choice  of  remedy,  so  that  his  right  to  main- 
tain a  common-law  action  for  sucli  injuries 
was  relinquished  and  given  up,  and  no  long- 
er exists.  The  terms  of  the  law  are  explicit, 
and  there  is  no  ground  to  question  that  such 
is  its  plain  purpose  and  meaning.  If  the  act 
in  question  be  constitutional,  the  plaintiff 
had,  when  the  present  action  was  brought, 
no  right  to  maintain  such  action  in  Massa- 
chusetts, and  therefore  had  no  right  of  ac- 
tion in  Rhode  Island.  But  the  provision  of 
said  act  respecting  the  waiving  of  the  right 
of  action  at  common  law  in  Massachusetts 
has  been  held  to  be  constitutional  by  the  su- 
preme judicial  court  of  that  state  in  Opin- 
ion of  Justices,  209  Mass.  607,  610,  611,  1)6 
N.  E.  308,  315,  316,  1  N.  C.  C.  A.  557.  The 
court  says:  "We  see  nothing  unconstitu- 
tional in  providing,  .  .  .  as  is  done  in 
part  1,  §  5,  that  the  employee  shall  be 
deemed  to  have  waived  his  right  of  action 
at  common  law  if  he  shall  not  have  given 
notice  to  his  employer  as  therein  provided. 
The  effect  of  the  provisions  referred  to  is 
to  leave  it  at  the  employee's  option  whether 
he  will  or  will  not  waive  his  right  of  action 
at  common  law.  ...  By  subscribing  to 
the  association  an  employer  voluntarily 
agrees  to  be  bound  by  the  provisions  of  the 
act.  The  same  is  true  of  an  employee  who 
does  not  choose  to  stand  upon  his  common- 
law  rights.  An  employer  who  does  not  sub- 
scribe to  the  association  will  no  longer  have 
the  right,  in  an  action  by  his  employee 
against  him  at  common  law,  to  set  up  the 
defense  of  contributory  negligence  or  as- 
sumption of  the  risk,  or  to  show  that  the 
injury  was  caused  by  the  negligence  of  a  fel- 
low servant.  In  the  case  of  an  employee 
who  does  not  accept  the  compensation  pro- 
vided for  by  the  act,  and  whose  employer 
has  become  a  subscriber  to  the  association, 
an  action  no  longer  can  be  maintained  for 
death  under  the  employers'  liability  act. 
But  these  considerations  do  not  constitute 
legal  compulsion  or  a  deprivation  of  funda- 
mental rights." 
L.R.A.1916A. 


As  workmen's  compensation  acts  are  of 
comparatively  recent  enactment,  it  is  not  to 
be  expected  that  many  court  decisions  can 
be  found  on  the  point  here  considered.  How- 
ever, the  employers'  liability  act  of  New  Jer- 
sey, which  contains  an  optional  provision 
similar  to  that  in  Massachusetts,  has  recent- 
ly been  considered  by  the  supreme  court  of 
New  York  in  Albanese  v.  Stewart,  78  Misc. 
581,  138  N.  Y.  Sup'p.  942.  Plaintiff  brought 
a  common -law  action  in  New  York  to  recov- 
er damages  for  injuries  received  in  New  Jer- 
sey. The  defendants  pleaded  the  New  Jersey 
act,  to  which  pleas  the  plaintiff  demurred. 
'Ihe  court  in  its  opinion  says:  "This  is  a 
common-law  action  brought  by  the  plaintiff, 
a  servant,  against  his  master,  to  recover 
damages  for  personal  injuries  sustained  in 
the  course  of  his  employment  in  the  state 
of  New  Jersey.  The  separate  defenses  are 
based  on  the  workmen's  compensation  act 
of  the  state  of  New  Jersey.  .  .  .  It  is 
conceded  that  the  act  was  in  force  at  the 
time  of  the  accident,  and  that  ordinarily 
the  liability  of  the  defendants  would  be  gov- 
erned by  the  laws  ...  of  New  Jersey. 
.  .  .  The  first  separate  defense  in  the  an- 
swer sets  forth  that  the  provisions  of  the 
statute  constitute  a  contract  between 
the  plaintiff  and  the  defendants,  whereby  the 
plaintiff  agreed  to  accept  and  the  defendants 
agreed  to  pay  a  certain  sum  of  money  in 
case  of  injury  occurring  to  the  plaintiff 
while  performing  duties  in  the  course  of 
his  employment;  that  each  party  agreed  to 
waive  all  questions  of  the  negligence  of 
either,  and  to  be  bound  solely  by  the 
terms  of  the  statute  .  .  .  The  New  Jer- 
sey act  is  not  a  compulsory  statute.  It  is 
a  so-called  optional  or  elective  statute. 
.  .  .  The  statute  .  .  .  becomes  com- 
pulsory only  in  the  event  that  neither  party 
disaffirms  it.  ...  The  accident  hap- 
pened in  the  state  of  New  Jersey,  and  as 
the  liability  of  the  defendants  is  governed 
by  the  law  of  that  state  I  think  that  the 
demurrer  should  be  overruled."  The  con- 
stitutionality of  the  New  Jersey  act  was 
upheld  by  the  supreme  court  of  that  state 
in  Sexton  v.  Newark  Dist.  Teleph.  Co.  84 
N.  J.  L.  85,  86  Atl.  451,  3  N.  C.  C.  A.  569. 

We  therefore  reach  the  conclusion  that  the 
plaintiff  is  not  entitled  to  bring  and  prose- 
cute in  this  state  the  common -law  action  un- 
der consideration,  as  by  his  own  act  his 
right  thereto  has  been  extinguished  in  the 
state  where  the  injury  was  received.  His 
exception  to  the  decision  of  the  Superior 
Court  overruling  his  demurrer  is  overruled, 
and  the  case  is  remitted  to  the  Superior 
Court  for  the  entry  of  judgment  on  the  de- 
cision. 


432 


WORKMEN'S  COMPENSATION. 


WASHINGTON  SUPREME   COURT. 

(In  Bane.) 

MICHAEL  J.  REYNOLDS,  Appt., 

v. 
HARRY  L.  DAY  et  al.,  Respts. 

(79  Wash.  499,   140   Pac.  681.) 

Conflict  of   laws  —  actions   on   foreign 
cause  —  difference  in  systems. 

The  maintenance  of  a  common-law  action 
for  injury  to  an  employee  in  another  state 
is  not  prevented  by  the  fact  that  a  local 
statute  has  abolished  civil  actions  for  such 
injuries,  and  provided  a  system  of  indus- 
trial insurance  to  provide  for  them;  at  least 
where  actions  may  still  be  brought  for  in- 
juries occurring  within  the  state  which  are 
not  within  the  provisions  of  the  statute, 
and  also  where  the  employer  is  in  default 
in  payments  necessary  to  entitle  him  to  the 
benefit  of  the  statute. 
For  other  cases,  see  Conflict  of  Laws,  I.  e,  1, 

in  Dig.  1-52  N.  S. 

(May   6,    1914.) 

APPEAL  by  plaintiff  from  the  judgment 
of  the  Superior  Court  for  Spokane  Coun- 
ty in  defendants'  favor  in  an  action  brought 
to  recover  damages  for  personal  injuries  al- 
leged to  have  been  caused  by  their  negli- 
gence. Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Robertson  &  Miller  and  Cork- 
cry  &  Corkery  for  appellant. 

Messrs.  John  H.  Wourms  and  Graves, 
Kizer,  &  Graves,  for  respondents: 

A  cause  of  action  arising  in  one  state  will 
not  be  enforced  in  the  courts  of  another 
state  when  there  is  substantial  dissimilar- 
ity between  the  statutes  of  the  two  states 
governing  the  subject-matter. 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  McCormick, 
71  Tex.  660,  1  L.R.A.  804,  9  S.  W.  540; 
Ash  v.  Baltimore  &  O.  R.  Co.  72  Md.  144, 
20  Am.  St.  Rep.  461,  19  Atl.  643;  Dale  v. 
Atchison,  T.  &  S.  .F.  R.  Co.  57  Kan.  601, 
47  Pac.  521,  1  Am.  Neg.  Rep.  46;  Belt  v. 
Gulf,  C.  &  S.  F.  R.  Co.  4  Tex.  Civ.  App.  231, 

22  S.  W.  1062 ;  Whitford  v.  Panama  R.  Co. 

23  N.  Y.  465;  Needham  v.  Grand  Trunk  R. 
Co.  38  Vt.  309;   Slater  v.  Mexican  Nat.  R. 
Co.   194  U.  S.   ]20,  48  L.  ed.  900,  24  Sup. 
Ct.   Rep.   581;    Keep   v.   National  Tube   Co. 
154  Fed.  121;  Zeikus  v.  Florida  East  Coast 
R.  Co.   144  App.  Div.  91,  128  N.  Y.  Supp. 
933 ;  Gallagher  v.  Florida  East  Coast  R.  Co. 
196  Fed.   3000;    St.  Bernard  v.  Shane,  201 
Fed.  453:   Walsh  v.  New  York  &  N.  E.  R. 
Co.   160  Mass.   571,  39  Am.   St.   Rep.   514, 
36  N.  E.  584. 

Note.  —  As  to  the  extraterritorial  juris- 
diction of  workmen's  compensation  statutes, 
and  conflict  of  laws  with  reference  thereto, 
see  annotation,  post,  443. 
L.K.A.1916A. 


Ellis,  J.,  delivered  the  opinion  of  the 
court : 

The  plaintiff  brought  this  action  in  the 
superior  court  of  Spokane  county  to  recover 
for  personal  injuries  suffered  by  him,  which 
injuries  he  alleges  were  caused  by  the  neg- 
ligence of  the  defendants  while  he  was  in 
their  employ  as  a  laborer  in  their  mine  in 
the  state  of  Idaho.  The  amended  complaint 
sets  up  an  ordinary  cause  of  action  as  at 
common  law  against  a  master  for  negligent 
injury  to  his  servant.  This  is  followed  by 
the  allegation :  "That  there  is  not  any  stat- 
ute or  law  in  the  state  of  Idaho  providing 
for  compulsory  or  industrial  insurance,  and 
the  plaintiff  does  not  receive,  under  the 
laws  of  the  state  of  Idaho,  any  benefits,  in- 
surance, or  compensation  on  account  of  said 
injuries  as  provided  for  employees  under  the 
laws  of  the  state  of  Washington."  There  is 
no  allegation  as  to  what  is  the  law  of  the 
state  of  Idaho  relating  to  the  maintenance 
of  such  actions,  save  the  inference  arising 
from  the  allegation  quoted  that  there  is  no 
statute  covering  the  case.  A  demurrer  was 
interposed  upon  the  grounds  that  the  court 
had  no  jurisdiction  of  the  subject-matter, 
and  that  the  complaint  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 
The  demurrer  was  sustained,  and  the  action 
dismissed  upon  the  sole  ground,  as  expressed 
in  the  court's  order,  that  "the  court  has  no 
jurisdiction  of  the  subject-matter  of  the  ac- 
tion." The  plaintiff  appealed. 

There  was  apparently  no  opportunity  giv- 
en for  further  amendment  of  the  complaint 
so  as  to  set  out  more  specifically  the  law  of 
the  state  of  Idaho,  and  it  is  manifest  that, 
if  the  decision  of  the  trial  court  is  correct, 
an  amendment  in  that  particular  would  have 
been  unavailing  in  any  event.  Moreover,  it 
seems  to  be  conceded  in  the  respondents' 
brief  that,  for  the  purposes  of  this  review,  it 
will  be  assumed  that  the  common  law,  as  ap- 
plied to  actions  of  this  character,  prevails  in 
the  state  of  Idaho.  Any  other  course  would 
be  obviously  unfair,  since  if  the  court  had 
overruled  the  demurrer  on  the  jurisdictional 
ground,  but  sustained  it  on  the  ground  of  in- 
sufficiency of  facts,  the  appellant  doubtless 
would  have  secured  leave  to  amend. 

The  respondents  contend,  and  the  trial 
court  apparently  held,  that  it  is  contrary  to 
the  public  policy  of  this  state  to  permit  the 
maintenance  of  an  action  of  this  character, 
and  that  this  policy  will  not  be  controlled  by 
the  rule  of  comity  so  as  to  permit  our  courts 
to  entertain  such  an  action  upon  a  cause 
arising  outside  of  this  state. 

It  is  asserted  that  a  policy  hostile  to  such 
an  action  as  this  is  specifically  declared  in 
the  1st  section  of  the  industrial  insurance 
act  (Laws  of  1911,  p.  345).  That  section 
reads  as  follows:  "The  common-law  system 


REYNOLDS  v.  DAY. 


433 


governing  the  remedy  of  workmen  against 
employers  for  injuries  received  in  hazard- 
ous work  is  inconsistent  with  modern  in- 
dustrial conditions.  In  practice  it  proves 
to  be  economically  unwise  and  unfair.  Itti 
administration  lias  produced  the  result  that 
little  of  the  cost  of  the  employer  has  reached 
the  workman,  and  that  little  only  at  large 
expense  to  the  public.  The  remedy  of  the 
workman  has  been  uncertain,  slow,  and  in- 
adequate. Injuries  in  such  works,  formerly 
occasional,  have  become  frequent  and  in- 
evitable. The  welfare  of  the  state  depends 
upon  its  industries,  and  even  more  upon  the 
welfar^  of  its  wage  worker.  The  state  of 
Washington,  therefore,  exercising  herein  its 
police  and  sovereign  power,  declares  that  all 
phases  of  the  premises  are  withdrawn  from 
private  controversy,  and  sure  and  certain  re- 
lief for  workmen  injured  in  extra-hazardous 
work,  and  their  families  and  dependents,  is 
hereby  provided  regardless  of  questions  of 
fault,  and  to  the  exclusion  of  every  other 
remedy,  proceeding,  or  compensation,  except 
as  otherwise  provided  in  this  act:  and  to 
that  end  all  civil  actions  and  civil  causes  of 
action  for  such  personal  injuries,  and  all 
jurisdiction  of  the  courts  of  the  state  over 
such  causes,  are  hereby  abolished,  except 
as  in  this  act  provided." 

In  the  absence  of  a  statute  declaring  i 
local,  an  action  for  personal  injury  is  a  tran- 
sitory action,  and  may  be  brought  wherever 
service  can  be  had  upon  the  person  responsi- 
ble for  the  injury. 

"Wherever,  by  either  the  common  law  or 
the  statute  law  of  a  state,  a  right  of  action 
has  become  fixed  and  a  legal  liability  in- 
curred, that  liability  may  be  enforced  and 
the  right  of  action  pursued  in  any  court 
which  has  jurisdiction  of  such  matters  and 
can  obtain  jurisdiction  of  the  parties.  The 
action  in  the  present  case  is  in  the  nature  of 
trespass  to  the  person,  always  held  to  be 
transitory,  and  the  venue  immaterial. 
.  .  .  It  would  be  a  very  dangerous  doc- 
trine to  establish  that,  in  all  cases  where 
the  several  states  have  substituted  the  stat- 
ute for  the  common  law,  the  liability  can  be 
enforced  in  no  other  state  but  that  where 
the  statute  was  enacted  and  the  transaction 
occurred."  Dennick  v.  Central  R.  Co.  103 
U.  S.  11,  ]  8,  26  L.  ed.  439,  441.  See  also  40 
Cyc.  105;  22  Am.  &  Eng.  Enc.  Law,  2d  ed. 
pp.  1379,  J380. 

Under  the  rule  of  comity,  rights  which 
have  accrued  by  the  law  of  another  state  or 
nation  are  treated  as  valid  everywhere. 
When  the  action  is  transitory  and  the  juris- 
diction of  the  parties  can  be  obtained  by 
service  of  process,  the  foreign  law,  if  not  con- 
trary to  the  public  policy  of  the  state  where 
the  action  is  brought,  nor  contrary  to  ab- 
stract justice  nor  pure  morals,  nor  calcu- 
L.R.A.191GA.  28 


lated  to  injure  the  state  or  its  citizens,  will 
be  recognized  and  enforced.  This  rule  ap- 
plies alike  to  actions  ex  contmct.n  and  ac- 
tions ex  delicto.  In  all  such  cases,  the  right 
to  recover  is  governed  by  the  lex  loci,  and 
not  by  the  lex  fori.  In  an  action  where  the 
injury  occurred  in  Montana  and  the  suit 
was  brought  in  Minnesota,  the  laws  of  the 
two  jurisdictions  being  different  as  to  the 
measure  and  amount  of  recovery,  the  Su- 
preme Court  of  the  United  States,  in  an 
opinion  delivered  by  the  present  chief  jus- 
tice, quotes  with  approval  from  Herrick 
v.  Minneapolis  &  St.  L.  R.  Co.  31  Minn. 
11,  47  Am.  Rep.  771,  16  N.  W.  413,  as  fol- 
lows: "But  it  by  no  means  follows  that, 
because  the  statute  of  one  state  differs  from 
the  law  of  another  state,  therefore  it  would 
be  held  contrary  to  the  policy  of  the  laws  of 
the  latter  state.  Everyday  our  courts  are 
enforcing  rights  under  foreign  contracts 
where  the  lex  loci  contractus  and  the  lex 
fori  are  altogether  different,  and  yet  we  con- 
strue these  contracts  and  enforce  rights  un- 
der them  according  to  their  force  and  effect 
under  the  laws  of  the  state  where  made.  To 
justify  a  court  in  refusing  to  enforce  a  right 
of  action  which  accrued  under  the  law  of  an- 
other state,  because  against  the  policy  of 
our  laws,  it  must  appear  that  it  is  against 
good  morals  or  natural  justice,  or  that,  for 
some  other  such  reason,  the  enforcement  of  it 
would  be  prejudicial  to  the  general  interests 
of  our  own  citizens," — adding:  "The  con- 
tract of  employment  was  made  in  Montana, 
and  the  accident  occurred  in  that  state, 
while  the  suit  was  brought  in  Minnesota. 
We  think  there  was  no  error  in  holding 
that  the  right  to  recover  was  governed  by 
the  lex  loci,  and  not  by  the  lex  fori."  North- 
ern P.  R.  Co.  v.  Babcock,  154  U.  S.  190, 
198,  199,  38  L.  ed.  958,  960,  961,  14  Sup.  Ct. 
Rep.  978,  981. 

The  supreme  court  of  Illinois  has  clearly 
stated  the  same  rule.  "Actions  not  penal, 
but  for  pecuniary  damages  for  torts  or  civil 
injuries  to  the  person  [or  property],  are 
transitory,  and,  if  actionable  where  commit- 
ted, in  general,  may  be  maintained  in  any 
jurisdiction  in  which  the  defendant  can  be 
legally  served  with  process.  We  think  it 
well  settled  that,  without  regard  to  the  rule 
which  may  obtain  as  to  a  cause  of  action 
which  accrued  under  the  laws  of  a  separate 
and  distinct  nation,  a  right  of  action  which 
has  accrued  under  the  statute  of  a  sister 
state  of  the  Union  will  be  enforced  by  the 
courts  of  another  state  of  the  Union,  unless 
against  good  morals,  natural  justice,  or  the 
general  interest  of  the  citizens  of  the  state 
in  which  the  action  is  brought."  Chicago 
&  E.  I.  R.  Co.  v.  Rouse,  178  111.  132,  135,  44 
L.R.A.  410,  52  N.  E.  951,  952,  5  Am.  Neg. 
Rep  549.  See  also  Stewart  v.  Baltimore  & 


434 


WORKMEN'S  COMPENSATION. 


O.  R.  Co.  168  U.  S.  445,  449,  42  L.  ed.  537, 
539,  18  Sup.  Ct.  Rep.  105;  Herrick  v.  Minne- 
apolis &  St.  L.  R.  Co.  31  Minn.  11,  47  Am. 
Rep.  771,  16  N.  W.  413;  Morris  v.  Chicago, 
R.  I.  &  P.  R.  Co.  65  Iowa,  727,  54  Am.  Rep. 
39,  23  N.  W.  143;  Higgins  v.  Central  New 
England  &  W.  R.  Co.  155  Mass.  176,  31  Am. 
St.  Rep.  544,  29  N.  E.  534 ;  East  Tennessee, 
V.  &  G.  R.  Co.  v.  Lewis,  89  Tenn.  235,  14  S. 
W.  603;  Story,  Confl.  L.  8th  ed.  p.  845, 
note  A;  Dicey,  Confl.  L.  Am.  Notes,  pp. 
667,  668. 

This  rule  applies  even  though  the  plain- 
tiff could  not  have  recovered  had  the  injury 
occurred  in  the  state  of  the  forum.  Walsh  v. 
New  York  &  N.  E.  R.  Co.  160  Mass.  571,  39 
Am.  St.  Rep.  514,  36  N.  E.  584. 

Measured  by  these  principles,  is  the 
spirit  of  the  industrial  insurance  law  so  an- 
tagonistic to  the  common-law  action  as  to 
warrant  a  denial  of  jurisdiction  in  our 
courts  of  a  case  such  as  this?  There  is  noth- 
ing penal  in  the  common-law  action,  nor  any 
thing  contrary  to  good  morals  or  natural 
justice,  nor  is  it,  for  any  cognate  reason, 
prejudicial  to  the  general  interests  of  our 
citizens.  That  the  legislature  did  not  so 
regard  it  is  evidenced  by  its  preservation  in 
all  cases  save  those  for  injury  in  "extra- 
hazardous  work,"  and  the  permission  of  its 
application  under  certain  conditions  even 
in  such  cases. 

The  respondents'  position  is  clearly  and 
forcibly  stated  in  their  brief  as  follows: 
"The  amended  complaint  leaves  us  somewhat 
in  the  dark  as  to  what  is  the  law  of  Idaho 
on  the  subject  of  compensation  to  injured 
workmen.  It  merely  pleads  that  there  is  no 
statute  in  Idaho  providing  for  compulsory 
or  industrial  insurance.  No  statute  of  Ida- 
ho governing  the  subject  being  pleaded,  and, 
the  state  of  the  law  there  being  not  more 
specifically  alleged,  we  presume  that  the 
courts  will  assume  that  the  common  law 
prevails  in  Idaho.  Now  the  common-law  sys- 
tem of  compensating  injured  workmen  is 
particularly  and  eo  nomine  contemned  by 
the  industrial  insurance  act.  It  is  declared 
'to  be  economically  unwise  and  unfair.'  It 
is  said  that  'its  administration  has  pro- 
duced the  result  that  little  of  the  cost  of 
the  employer  has  reached  the  workmen,  and 
that  little  only  at  large  expense  to  the  pub- 
lic.' Because  of  the  unwisdom  of  the  com- 
mon-law system  in  that  behalf,  the  state  of 
Washington,  it  is  declared,  has  withdrawn 
the  compensation  of  injured  workmen  'from 
private  controversy,'  and  has  abolished  'all 
civil  actions  and  civil  causes  of  action  for 
such  personal  injury  and  all  jurisdiction  of 
the  courts  of  the  state'  thereover.  If  this 
L.R.A.1916A. 


be  not  the  declaration  of  a  policy  utterly 
antagonistic  and  opposed  in  its  every  notion 
and  theory  to  the  common  law,  it  is  impos- 
sible to  frame  such  a  declaration." 

Conceding  the  premises  with  the  excep- 
tions made  by  the  statute  itself,  the  con- 
clusion does  not  follow.  The  hostility  of 
our  law  is  not  directed  against  the  remedial 
purpose  of  the  common  law.  It  extends  that 
purpose  to  cases  not  reached  by  the  common- 
law  action.  The  rule  of  the  common  law  is 
contemned,  not  because  it  furnishes  a  reme- 
dy, but  because  the  remedy  is  deemed  inad- 
equate. This  is  far  from  a  declaration  of 
policy  which  would  refuse  that  remedy 
where  that  remedy  is  the  only  alternative. 
There  is  nothing  in  the  employers'  liability 
act  so  hostile  to  the  common-law  remedy  as 
to  deny  any  remedy  where  the  circumstances 
will  permit  the  application  of  no  remedy 
save  that  of  the  common  law.  The  assertion 
that  our  law  declares  a  policy  "utterly  an- 
tagonistic and  opposed  in  its  every  notion 
and  theory  to  the  common  law"  is  more 
rhetorical  than  exact.  It  is  true  only  in  a 
qualified  sense.  Our  law  is  not  opposed  to 
the  common-law  theory  of  recompense  for 
injury.  It  is  only  opposed  to  the  common- 
law  assumption  that  a  suit  at  law  furnishes 
adequate  recompense.  Such  a  policy  is  cer- 
tainly not  contrary  to  the  giving  of  any 
remedy  merely  because  the  only  remedy  pos- 
sible is  deemed  inadequate.  Our  statute 
was  never  intended  to  declare  that,  because 
workmen  injured  in  this  state  receive  com- 
pensation without  suit,  it  is  against  the 
public  policy  of  this  state  that  workmen  in- 
jured outside  of  the  state,  and  where  the 
common  law  prevails,  should  receive  any 
compensation. 

The  expense  to  our  taxpayers  and  the  in- 
convenience to  our  courts  which  would  re- 
sult from  entertaining  suits  upon  causes  of 
action  arising  in  other  jurisdictions  is  ad- 
vanced as  another  reason  why  the  rule  of 
comity  should  not  prevail  in  such  cases.  It 
is  pointed  out  that  one  of  the  motives  for 
the  passage  of  the  industrial  insurance  act 
was  to  avoid  the  expense  imposed  by  the 
operation  of  the  common-law  system  of  com- 
pensation. It  is  claimed  that  this  policy  i» 
shown  in  the  preamble  of  the  act,  where  it 
is  said  that  the  administration  of  that  sys- 
tem has  been  "at  large  expense  to  the  pub- 
lic." To  our  minds  this  hardly  justifies  the 
respondents'  conclusion.  Such  actions  are 
still  maintained  in  this  state,  where  the 
cause  of  action  arises  in  this  state,  even  in 
cases  falling  within  the  purview  of  the  in- 
dustrial insurance  act,  when  the  employer 
is  in  default  in  any  payment  due  from  him 


REYNOLDS  v.  DAY. 


435 


to  the  accident  fund.  Industrial  Insurance 
act,  §  8;  Laws  1911,  p.  362  (3  Rem.  &  Bal. 
Code,  §§  6604-8).  In  State  ex  rel.  Baker 
River  &  S.  R.  Co.  v.  Nichols,  51  Wash. 
619,  621,  99  Pac.  876  (though,  as  there  in- 
dicated, the  question  of  comity  was  not  real- 
ly involved,  but  only  a  question  of  statutory 
construction),  it  was  pointed  out  that  pub- 
lic policy  is  dependent  upon  our  own  laws, 
while  comity  is  based  upon  the  laws  of  oth- 
er states  or  countries.  In  that  case  it  is 
well  stated  that  "comity  depends  not  alone 
upon  a  disposition  to  favor  the  citizen  of 
another  state  or  country,  but  rests  upon 
well-settled  principles  of  practice,  expe- 
diency, and  convenience.  It  is  a  rule  recog- 
nized by  courts  and  applied  within  bounds 
of  discretion.  It  is  based  upon  the  statute 
law  or  decisions  of  courts  of  general  juris- 
diction of  other  states  or  countries,  rather 
than  upon  our  own.  These  will  be  recog- 
nized and  given  force  if  it  be  found  that 
they  do  not  conflict  with  the  local  law,  in- 
flict an  injustice  on  our  own  citizens,  or 
violate  the  public  policy  of  the  state." 

Unquestionably,  before  the  industrial  in- 
surance act  was  passed,  our  courts  would 
have  entertained  this  action  under  the  rule 
of  comity  so  defined.  Can  it  be  said  with 
any  show  of  reason  that,  because  our  courts 
have  been  relieved  of  much  of  this  character 
of  litigation  when  arising  between  our  own 
citizens  and  on  causes  originating  in  our 
own  state,  there  is  now  such  an  overpower- 
ing inconvenience  as  to  make  it  inexpedient 
to  entertain  jurisdiction  of  a  cause  of  action 
arising  in  another  state  which  would  have 
been  entertained  but  for  that  relief?  Every 
trial  of  a  case  of  which  jurisdiction  is  taken 
by  comity  adds  just  that  much  to  the  bur- 
den of  taxation.  That  fact,  however,  is  only 
valid  as  an  argument  against  the  indulgence 
of  the  principle  of  comity  in  any  case.  It 
has  no  peculiar  application  to  cases  of  this 
kind. 

There  is  another  consideration  which  pre- 
sents an  insuperable  obstacle  to  the  re- 
spondents' position.  In  order  to  make  the 
common-law  remedy  so  contrary  to  the  pub- 
lic policy  of  this  state  that  it  will  not  be  en- 
forced as  a  matter  of  comity,  it  must  appear 
that  the  common-law  remedy  will  never  be 
enforced  under  any  circumstances  where  the 
cause  of  action  arises  in  this  state  between 
our  own  citizens.  We  again  impress  the  fact 
that  the  common-law  action  may  still  be 
maintained  and  its  remedy  enforced  as 
against  an  employer  in  this  state  in  all  cas- 
es not  specifically  covered  by  the  industrial 
insurance  act.  Moreover,  the  industrial  in- 
surance act,  upon  which  the  respondents  re- 
L.R.A.1916A. 


ly  as  the  sole  manifestation  of  a  public  pol- 
icy of  this  state  inimical  to  the  common-law 
action,  expressly  excepts  cases  where  the  em- 
ployer is  in  default  in  his  contribution  to 
the  statutory  insurance  fund.  We  have  held 
that  such  payment  is  a  matter  of  affirmative 
defense  which  must  be  pleaded  and  proved  in 
order  to  defeat  an  action  at  law  against  the 
employer  for  injury  to  his  employee.  Acres 
v.  Frederick  &  Nelson,  79  Wash.  402,  140 
Pac.  370,  5  N.  C.  C.  A.  557.  This  negatives 
any  such  hostility  of  our  public  policy  to 
the  common-law  action,  even  in  cases  arising 
in  this  state  and  within  the  purview  of  the 
act,  as  to  override  the  rule  of  comity  in  fa- 
vor of  a  cause  of  action  arising  in  a  jurisdic- 
tion where  there  is  no  statute  creating 
such  a  fund  or  providing  any  other  remedy 
than  that  of  the  common  law.  To  'construe 
our  statute  as  declaring  such  a  public  policy 
as  that  claimed  would,  aside  from  any  rule 
of  comity,  render  it  subject  to  the  ban  of 
§  2,  art.  4,  of  the  Federal  Constitution.  It 
would  deny  to  the  citizens  of  other  states 
the  same  privileges  which  it  accords  to  our 
own  citizens  in  like  circumstances. 

"In  the  decision  of  the  merits  of  the  case, 
there  are  some  fundamental  principles  which 
are  of  controlling  effect.  The  right  to  sue 
and  defend  in  the  courts  is  the  alternative  of 
force.  In  an  organized  society  it  is  the 
right  conservative  of  all  other  rights,  and 
lies  at  the  foundation  of  orderly  government. 
It  is  one  of  the  highest  and  most  essential 
privileges  of  citizenship,  and  must  be  al- 
lowed by  each  state  to  the  citizens  of  all 
other  states  to  the  precise  extent  that  it  is 
allowed  to  its  own  citizens.  Equality  of 
treatment  in  this  respect  is  not  left  to  de- 
pend upon  comity  between  the  states,  but  is 
granted  and  protected  by  the  Federal  Con- 
stitution." Chambers  v.  Baltimore  &  O.  R. 
Co.  207  U.  S.  142,  148,  52  L.  ed.  143,  146, 
28  Sup.  Ct.  Rep.  34,  35.  See  also  Cole  v. 
Cunningham,  133  U.  S.  107,  33  L.  ed.  538, 
10  Sup.  Ct.  Rep.  269;  Corfield  v.  Coryell,  4 
Wash.  C.  C.  371,  381,  Fed.  Cas.  No.  3,230. 

The  legislature  never  intended  the  act  in 
question  to  infringe  the  broad  rule  of  comity 
as  heretofore  recognized  by  the  highest  courts 
both  state  and  Federal.  To  give  the  act  that 
effect  would  wantonly  endanger  its  consti- 
tutionality. 

The  judgment  is  reversed,  and  the  cause 
is  remanded,  with  direction  to  permit  an 
amendment  of  the  complaint  so  as  to  plead 
the  law  of  Idaho  applicable  in  such  a  case, 
and  for  further  proceedings. 

Crow,  Ch.  J.,  and  Main,  Gosc,  Parker, 
and  Fullerton,  JJ.,  concur. 


436 


WORKMEN'S  COMPENSATION. 


CONNECTICUT  SUPREME  COURT  OF 
ERRORS. 

SOPHIA    KENNERSON,    Admrx.,    etc.,    ot 
Wallace  J.  Hodges,  Deceased, 

v. 
THAMES  TOVVBOAT  COMPANY. 


MARCIA    S.    MARSDALE,    Admrx.,    etc., 
of    George   Marsdale,    Deceased, 

v. 
SAME. 

(89  Conn.  367,  94  Atl.  372.) 

Master  and  servant  —  appeal  from 
Compensation  Commission  —  ques- 
tions open. 

1.  llie  court  cannot,  upon  appeal  from  a 
compensation  commissioner,  retry  the  facts, 
but  inquires  into  them  merely  to  deter- 
mine whether  the  award  is  unauthorized  in 
law,  irregular  or  informal,  or  based  upon  a 
misconception  of  the  law,  or  of  the  powers 
or  duty  of  the  commissioner,  or  is  so  un- 
reasonable as  to  justify  judicial  interfer- 
ence. 
For  other  cases,  see  Appeal  and  Error,  VII. 

1.  4,  in  Dig.  1-52  N.  8. 

Courts  —  jurisdiction  —  action  arising 
on  high  seas. 

2.  A   provision   for  compensation   for   in- 
juries, made  part  of  a  contract  of  employ- 
ment between  citizens  of  the  state,  which  is 
to  be  executed  in  part  upon  the  navigable 
waters  outside  the  jurisdiction  of  the  state, 
may   be  enforced   in   the  state   courts,   not- 
withstanding   the    injury    occurred    outside 
the  state,  and  within  the  jurisdiction  of  the 
admiralty  court. 

For  other  cases,  see  Courts,  IV.  d,  in  Dig. 
1-52  N.  S. 

Master  and  servant  —  workmen's  com- 
pensation —  injury  on  navigable  wa- 
ter. 

3.  An  exception  in  a  state  employer's  lia- 
bility  act  of  injuries  arising  in   interstate 
or   foreign   commerce   does   not   apply   to  a 
death   caused   by   the   foundering   of   a   tug 
without     negligence     on     navigable    waters 
of  the  United  States. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8. 

Same  —  injury  outside  of  state  —  ap- 
plicability of  statute. 

4.  Provision    for    compensation    for    in- 
juries to  employees,   occurring   outside  the 
state,  in  a  contract  for  employment  between 
citizens    of   the    state,    is    authorized    by    a 
workmen's    compensation    act    designed    to 
apprise  employer-  and  employee   of  the  re- 
covery to  be  had  in  case  of  industrial  ac- 
cidents, the   language  of  the  statute  being 


Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to  the  extraterritorial  effect  of  state 
workmen's   compensation   acts   and    conflict 
of  laws,  see  annotation,  post,  443. 
L.R.A.1916A. 


general,   equally   applicable   to   injuries   oc- 
curring within  and  without  the  state. 
For   other   cases,   see   Master  and   Servant, 

II.  a,  1,  in  Dig.  1-52  iV.  8. 
Statute  —  workmen's  compensation  act 
—  construction  —  extraterritorial  ef- 
fect. 

5.  A   provision   of   a   workmen's  compen- 
sation act  that  each  commissioner  has  ju- 
risdiction of  all  claims  arising  in  his  dis- 
trict does  not  show  intention  that  the  act 
shall  not  apply  to  injuries  arising  in  other 
states,  under  contracts  between   citizens  of 
the  state,   since  the  claim  may   be  said  to 
arise  at  the  domicil  of  the  parties  injured. 
For   other  cases,  see   Master  and   Servant, 

II.  a,  1,  in  Dig.  1-52  N.  S. 
Same  —  mandatory    provision  —  place 
for  filing  award. 

6.  A   provision   in   a   workmen's   compen- 
sation act  that  awards  shall  be  filed  in  the 
office  of  the  clerk  of  the  court  for  the  coun- 
ty in  which  the  injury  occurred  should  not 
be   given   a   mandatory   construction,   so   as 
to   prevent   applicability   of  the   act  to   in- 
juries arising  out  of  the  state,  under  con- 
tract  made   in   the   state,   between   its   citi- 
zens. 

For  other  cases,  see  Statutes,  II.  a,  in  Dig. 

1-52  AT.  S. 
Same  —  provision   for   appeal  —  place 

where  injury  was  sustained. 

7.  A   provision   in   a   workmen's   compen- 
sation act,  which  allows  employer  and  em- 
ployee to  contract  for  compensation  in  case 
of  injury,  that  an  appeal  from  the  commis- 
sioner's award  may  be  had  to  the  "superior 
court   for   the  county  in   which   the   injury 
was   sustained,"   does   not   prevent   the   ap- 
plication of  the  act  to  an  injury  occurring 
out  of  the  state,  under  contracts  made  with- 
in it,  since  the  injury  may  be  said  to  have 
been  sustained  in  the  place  where  the  con- 
tract was  made. 

For  other  cases,  sec  Master  and  Serva,nt, 
II.  a,  1,  in  Dig.  1-52  N.  S. 

Master  and  servant  —  injury  —  depend- 
ency —  findings  of  commissioner  — 
conclusiveness. 

8.  The  question  of   dependency  of   claim- 
ant for  death  of  an  employee  under  a  work- 
men's   compensation    act    is    settled   by   the 
findings    of    the    commissioner,    in    the    ab- 
sence of  anything  to  indicate  error  of  law 
in    making    the    findings,    or    drawing   con- 
clusions from  them. 

For  other  cases,  see  Appeal  and  Error,  VII. 
I,  4,  in  Dig.  1-52  N.  S. 

(June  10,   1915.) 

OBSERVATION  by  the  Superior  Court 
J_\  for  New  London  County  for  the  con- 
sideration of  the  Supreme  Court  of  Errors 
of  questions  arising  upon  appeal  by  defend- 
ant from  the  awards  by  the  Commissioner 
of  compensation  to  plaintiffs,  in  proceedings 
by  them  to  recover  for  the  death  of  their 
sons.  Judgments  dismissing  appeals  ad- 
vised. 


KENNERSON  v.  THAMES  TOWBOAT  CO. 


437 


Statement  by  Wheeler,  J. : 

The  decedents,  Wallace  J.  Hodges  and 
George  Marsdale,  were  citizens  of  Connecti- 
cut. The  respondent,  the  Thames  Towboat 
Company,  was  and  is  a  Connecticut  cor- 
poration located  in  New  London,  Connecti- 
cut. Contracts  of  employment,  entered  into 
in  New  London,  existed  between  the  re- 
spondent company  and  Hodges,  decedent  of 
Kennerson,  administratrix,  and  Marsdale, 
decedent  of  Marcia  S.  Marsdale,  adminis- 
tratrix, under  which  decedents'  employ- 
ment upon  respondent's  towboats  was  to  be 
in  Connecticut  and  on  waters  of  the  high 
seas,  and  of  other  states.  Both  decedents 
and  the  respondent  had  accepted  the  provi- 
sions of  part  B  of  the  workmen's  compen- 
sation act.  The  decedents  were,  on  the 
35th  day  of  April,  1914,  drowned  in  Raritan 
bay,  near  South  Amboy,  New  Jersey,  by  the 
foundering  of  the  tug  on  which  they  were 
employed ;  their  deaths  arising  out  of  and 
in  the  course  of  their  employment. 

Said  Wallace  T.  Hodges  left  surviving 
him  two  sisters  under  eighteen,  a  married 
sister,  and  a  mother,  claimant  herein.  He 
had  given  his  mother  for  upwards  of  ten 
years  half  of  his  earnings,  or  $20  a  month. 
His  mother  used  the  sums  so  contributed 
for  her  own  support  and  that  of  her  minor 
children.  She  also  received  other  support 
from  her  husband,  who  earned  $50  a  month. 
None  of  the  other  children  contributed  to 
their  mother's  support. 

Said  George  Marsdale  left  surviving  him 
two  brothers,  a  sister,  and  a  mother,  claim- 
ant herein.  He  had,  during  the  illness  of 
his  father,  sent  his  mother  from  July  un- 
til his  father's  death,  November  10,  1913, 
$10  a  week  of  his  weekly  wages  of  $15. 
After  her  husband's  death  the  mother  went 
to  live  with  her  son  Charles  temporarily, 
and  on  December  9,  1913,  the  decedent  en- 
gaged in  said  employment  with  the  respond- 
ent for  $?0  a  month  and  his  board,  worth 
$.50  a  day.  Out  of  his  earnings  the  de- 
cedent gave  his  mother  from  $20  to  $25  a 
month,  which  sums  were  to  pay  the  funeral 
expenses  of  her  husband.  These  were  just 
paid  prior  to  George's  death.  The  mother 
and  decedent  had  arranged  that  as  soon  as 
the  funeral  expenses  were  paid,  her  resi- 
dence with  her  son  Charles  should  cease, 
and  they  should  then  live  together,  and  the 
decedent  should  support  his  mother.  Ex- 
cept as  stated,  none  of  the  children  con- 
tributed to  the  support  of  their  mother. 

From  the  foregoing  facts  the  commission- 
er found  that  Mrs.  Kennerson,  the  mother 
of  Wallace  T.  Hodges,  was  a  partial  de- 
pendent of  her  son  Wallace,  and  that  Mrs. 
Marsdale,  the  mother  of  George  Marsdale, 
was  a  total  dependent  of  her  son  George. 
L.R.A.1916A. 


Mr.  Christopher  L.  Avery,  for  claim- 
ants : 

The  workmen's  compensation  act  does  not 
violate  the  14th  Amendment  to  the  Con- 
stitution of  the  United  States,  or  any  pro- 
vision of  the  Bill  of  Rights  of  the  state  of 
Connecticut. 

Second  Employers'  Liability  Cases  (Mon- 
dou  v.  New  York,  N.  H.  &  H.  R.  Co.)  223 
U.  S.  1,  56  L.  ed.  327,  38  L.R.A.(N.S.)  44, 
32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875; 
Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571, 
59  L.  ed.  364,  35  Sup.  Ct.  Rep.  167,  7  N. 
C.  C.  A.  570;  Opinion  of  Justices,  209 
Mass.  607,  96  N.  E.  308,  1  N.  C.  C.  A.  557 ; 
State  ex  rel.  Yaple  v.  Creamer,  85  Ohio  St. 
349,  39  L.R.A.(N.S.)  694,  97  N.  E.  602; 
Borgnis  v.  Falk  Co.  147  Wis.  327,  37  L.R.A. 
(N.S.)  489,  133  N.  W.  209,  3  N.  C.  C.  A. 
649;  State  ex  rel.  Davis-Smith  Co.  v.  Clau- 
sen, 65  Wash.  156,  37  L.R.A. (N.S.)  466, 
117  Pac.  1101,  2  N.  C.  C.  A.  823,  3  N.  C. 
C.  A.  599 ;  Crooks  v.  Tazewell  Coal  Co.  263 
111.  343,  105  N.  E.  132,  Ann.  Cas.  1915C, 
304,  5  N.  C.  C.  A.  410;  Deibeikis  v.  Link- 
Belt  Co.  261  111.  454,  104  N.  E.  211,  Ann. 
Cas.  1915A,  241,  5  N.  C.  C.  A.  401  ;  Sexton 
v.  Newark  Dist.  Teleg.  Co.  84  N.  J.  L.  85,. 
86  Atl.  451,  3  N.  C.  C.  A.  569;  Dietz  v.  Big 
Muddy  Coal  &  I.  Co.  263  111.  480,  105  N. 
E.  289,  5  N.  C.  C.  A.  419;  Mathison  v.  Min- 
neapolis Street  R.  Co.  126  Minn.  286,  L.R.A. 
— ,— ,  148  N.  W.  71,  5  N.  C.  C.  A.  871;  Mem- 
phis Cotton  Oil  Co.  v.  Tolbert,  —  Tex.  Civ. 
App.  — ,  171  S.  W.  309,  7  N.  C.  C.  A.  547;. 
Shade  v.  Ash  Grove  Lime  &  Portland  Ce- 
ment Co.  93  Kan.  257,  144  Pac.  249. 

The  claim  of  the  defendant  that  the  ad- 
miralty jurisdiction  is  exclusive  is  without 
foundation. 

Schoonmaker  v.  Gilmore,  102  U.  S.  118, 
119,  26  L.  ed.  95;  Leon  v.  Galceran,  11 
Wall.  185,  187,  20  L.  ed.  74,  75;  Manchester 
v.  Massachusetts,  139  U.  S.  240,  262,  35- 
L.  ed.  159,  166,  11  Sup.  Ct.  Rep.  559;. 
Knapp,  S.  &  Co.  Co.  v.  McCaffrey,  177  U.  S. 
638,  648,  44  L.  ed.  921,  926,  20  Sup.  Ct. 
Rep.  824;  The  Belfast,  7  Wall.  624,  644, 
19  L.  ed.  266,  272;  The  Hine  v.  Trevor,  4 
Wall,  555,  571,  18  L.  ed.  451,  456;  Murray 
v.  Pacific  Coast  S.  S.  Co.  207  Fed.  692. 

No  action  will  lie  in  admiralty  under  the- 
general  maritime  law  to  recover  damages 
for  the  death  of  a  human  being  on  the  high 
seas,  or  on  waters  navigable  from  the  sea, 
which  is  caused  by  negligence.  Such  a  right 
of  action  may,  however,  be  created  by  stat- 
ute, either  Federal  or  state. 

The  Harrisburg,  119  U.  S.  199,  213,  30 
L.  ed.  358,  362,  7  Sup.  Ct.  Rep.  140:  The 
Albert  Dumois,  177  U.  S.  240,  259,  44  L. 
ed.  751,  761,  20  Sup.  Ct.  Rep.  595;  Work- 


438 


WORKMEN'S  COMPENSATION. 


men  v.  New  York,  179  U.  S.  552,  563,  45 
L.  ed.  314,  321,  21  Sup.  Ct.  Rep.  212. 

A  state  may  create  a  right  of  action  for 
injuries  resulting  in  death  to  its  citizens 
on  its  own  vessels  while  at  sea,  and  a  pro- 
ceeding under  such  a  state  statute  may  be 
maintained  either  in  the  state  court  or  on 
the  law  side  of  a  Federal  court,  where  the 
necessary  diversity  of  citizenship  exists,  or 
in  admiralty,  in  an  action  in  personam. 

American  S.  B.  Co.  v.  Chase,  16  Wall. 
522,  532,  533,  21  L.  ed.  369,  372;  Sherlock 
v.  Ailing,  93  U.  S.  99,  104,  23  L.  ed.  819, 
820;  McDonald  v.  Mallory,  77  N.  Y.  546, 
33  Am.  Rep.  664;  The  Hamilton  (Old  Do- 
minion S.  S.  Co.  v.  Gilmore)  207  U.  S. 
398,  403,  52  L.  ed.  264,  269,  28  Sup.  Ct. 
Rep.  133;  Cornell  S.  B.  Co.  v.  Fallen,  102 
C.  C.  A.  345,  179  Fed.  293;  Schuede  v. 
Zenith  S.  S.  Co.  216  Fed.  566. 

Constructively  the  tug  "Aries,"  at  the 
time  of  the  accident,  was  to  be  considered 
as  in  law  a  part  of  the  territory  of  the 
state  of  Connecticut  (the  state  where  the 
owners  belong),  and  all  persons  on  board, 
as  to  their  relations  with  each  other,  were 
subject  to,  and  to  be  governed  by,  the  laws 
of  the  state  of  Connecticut. 

1  Kent,  Com.  158;  Wilson  v.  McNamee, 
102  U.  S.  572,  574,  26  L.  ed.  234,  235; 
United  States  v.  Rodgers,  150  U.  S.  249, 
260,  37  L.  ed.  1071,  1075,  14  Sup.  Ct.  Rep. 
109;  Wildenhus's  Case  (Mali  v.  Keeper  of 
Common  Jail)  120  U.  S.  1,  12,  30  L.  ed. 
565,  567,  7  Sup.  Ct.  Rep.  383;  Patterson  v. 
The  Eudora,  190  U.  S.  169,  176,  47  L.  ed. 
1002,  1006,  23  Sup.  Ct.  Rep.  821;  Thomp- 
son Towing  &  Wrecking  Asso.  v.  McGregor, 
124  C.  C.  A.  479,  207  Fed.  209;  Reg.  v. 
Anderson,  L.  R.  1  C.  C.  161;  The  Bee,  216 
Fed.  709;  Manning  v.  International  Mer- 
cantile Marine  Co.  129  C.  C.  A.  453,  212 
Fed.  933;  Schweitzer  v.  Hamburg- American 
Line,  78  Misc.  448,  138  N.  Y.  Supp.  944, 
affirming  149  App.  Div.  900,  134  N.  Y. 
Supp.  812;  Deeny  v.  Wright  &  C.  Lighter- 
age Co.  36  N.  J.  L.  J.  121. 

The  Connecticut  compensation  act  is 
based  upon  the  theory  of  contract.  The 
relationship  being  contractual,  the  law  of 
the  place  where  the  contract  is  made  gov- 
erns the  parties  thereto,  irrespective  of  the 
place  where  the  accident  happens. 

Hotel  Bond  Co.'s  Appeal,  89  Conn.  143, 
93  Atl  245:  Tennessee  Coal,  I  &  R.  Co.  v. 
George,  233  U.  S.  354,  361,  58  L.  ed.  997, 
1000,  L.R.A.— ,  — ,  34  Sup.  Ct.  Rep.  587; 
Johnson  v.  Nelson,  128  Minn.  158,  150  N. 
W.  620;  Wasilewski  v.  Warner  Sugar  Ref. 
Co.  87  Misc.  156,  149  N.  Y.  Supp.  1035; 
1  Bradbury,  Workmen's  Compensation,  2d 
ed.  pp.  34-59. 

In  both  cases  the  finding  of  the  commis- 
L.R.A.1916A. 


sioner  on  the  question  of  dependency  is  con- 
clusive, and  ought  not  to  be  disturbed  by 
the  superior  court. 

Hotel  Bond  Co's  Appeal,  89  Conn.  143, 
03  Atl.  245;  Rintoul  v.  Dalmeny  Oil  Co.  45 
Scot.  L.  R.  809,  1  B.  W.  C.  C.  340 ;  McLean 
v.  Moss  Bay  Haematite  Iron  &  Steel  Co. 
3  B.  W.  C.  C.  402;  Hodgson  v.  West  Stan- 
ley Colliery  [1910]  A.  C.  (H.  L.)  229,  79 
L.  J.  K.  B.  N.  S.  356,  54  Sol.  Jo.  403,  47 
Scot.  L.  R.  881,  102  L.  T.  N.  S.  194,  26 
Times  L.  R.  333,  3  B.  W.  C.  C.  260. 

Messrs.  Hull,  McGuire,  &  Hull,  for 
respondent : 

The  compensation  act  of  Connecticut  has 
no  extraterritorial  effect. 

Tomalin  v.  Pearson  &  Son  [1909]  2  K. 
B.  61,  78  L.  J.  K.  B.  N.  S.  863,  100  L.  T. 
N.  S.  685,  25  Times  L.  R.  477;  Hicks  v. 
Maxton,  124  L.  T.  Jo.  135;  Schwartz  v. 
India  Rubber,  Gutta  Percha  &  Teleg.  Works 
Co.  [1912]  2  K.  B.  299,  81  L.  J.  K.  B.  N. 
S.  780,  106  L.  T.  N.  S.  706,  28  Times  L.  R. 
331,  5  B.  W.  C.  C.  390;  Gould's  Case,  215 
Mass.  480,  102  N.  E.  693,  Ann.  Gas.  1914D, 
372,  4  N.  C.  C.  A.  60;  Johnson  v.  Nelson, 
128  Minn.  158,  150  N.  W.  620;  American 
Radiator  Co.  v.  Rogge,  86  N.  J.  L.  436,  92 
Atl.  85,  7  N.  C.  C.  A.  144;  The  Fred  E. 
Sander,  208  Fed.  724,  4  N.  C.  C.  A.  891. 

The  district  court  of  the  United  States 
has  sole  and  exclusive  jurisdiction  of  an 
action,  if  any  there  be,  arising  out  of  the 
deaths  in  these  cases. 

American  S.  B.  Co.  v.  Chase,  16  Wall. 
522,  21  L.  ed.  369;  Sherlock  v.  Ailing,  93 
U.  S.  99,  23  L.  ed.  819;  McDonald  v.  Mal- 
lory, 77  N.  Y.  546,  33  Am.  Rep.  664; 
Schuede  v.  Zenith  S.  S.  Co.  216  Fed.  566; 
Norwich  &  N.  Y.  Transp.  Co.  v.  Wright, 
13  Wall.  104,  123,  20  L.  ed.  585,  591;  But- 
ler v.  Boston  &  S.  S.  S.  Co.  130  U.  S.  527, 
32  L.  ed.  1017,  9  Sup.  Ct.  Rep.  612;  The 
Fred  E.  Sander,  208  Fed.  724,  4  N.  C.  C.  A. 
891;  Berton  v.  Tietjen  &  L.  Dry  Dock  Co. 
219  Fed.  763;  Atlantic  Transport  Co.  v. 
Imbrovek,  234  U.  S.  52,  58  L.  ed.  1208, 
51  L.R.A.(N.S.)  1157,  34  Sup.  Ct.  Rep. 
733;  The  Bee,  216  Fed.  709. 

The  New  Jersey  compensation  act  applies 
to  injuries  received  in  New  Jersey. 

American  Radiator  Co.  v.  Rogge,  86  N. 
J.  L.  436,  92  Atl.  85,  7  N.  C.  C.  A.  144; 
Johnson  v.  Nelson,  128  Minn.  158,  150  N. 
W.  620. 

The  burden  of  proving  dependency  must 
be  upon  the  claimant.  It  should  be  proved 
by  clear  and  satisfactory  evidence,  and  not 
left  to  conjecture  or  guess. 

Hotel  Bond  Co's  Appeal,-  89  Conn.  143, 
93  Atl.  249;  Pinel  v.  Rapid  R.  System,  — 
Mich.  — ,  150  N.  W.  897. 


KENNERSON  v.  THAMES  TOWBOAT  CO. 


439 


Wheeler,  J.,  delivered  the  opinion  of 
the  court: 

The  reservation  raises  three  questions  for 
decision :  ( 1 )  Whether  recovery  under  the 
compensation  act  may  be  had  for  the  in- 
jury resulting  in  the  death  of  these  de- 
cedents; (2)  whether  the  claimants,  or 
either  of  them,  were  entitled  to  compensa- 
tion under  the  act;  and  (3)  what  judgment 
should  be  rendered  by  the  superior  court. 

Before  proceeding  to  the  discussion,  it 
is  well  to  restate  the  position  before  the 
superior  court  of  appeals  from  the  finding 
and  award  of  a  compensation  commissioner. 
The  compensation  commissioner  is  an  execu- 
tive officer  engaged  in  administrative 
duties.  The  superior  court  cannot,  on  ap- 
peal, retry  the  facts.  It  inquires  into  the 
facts  merely  to  determine  whether  "the  find- 
ing and  award  .  .  .  appealed  from  are 
unauthorized  in  law,  irregular  or  informal, 
or  based  upon  a  misconception  of  the  law, 
or  of  the  powers  or  duty  of  the  administra- 
tive tribunal,  or  are  so  unreasonable  as  to 
justify  judicial  interference."  If  it  so  finds, 
it  will  set  aside  the  award ;  otherwise  it 
will  dismiss  the  appeal.  Hotel  Bond  Go's 
Appeal,  89  Conn.  143,  93  Atl.  245. 

The  accident  resulting  in  the  death  of 
Hodges  and  Marsdale,  for  which  compensa- 
tion is  claimed  under  our  compensation  act, 
occurred  in  the  waters  of  Raritan  bay; 
whether  on  the  high  seas  or  within  the 
navigable  waters  of  New  Jersey,  the  record 
does  not  distinctly  specify.  The  parties  on 
the  argument  have  agreed  that  it  occurred 
in  the  navigable  waters  of  New  Jersey,  and 
we  shall  so  assume.  The  decedents  and 
the  respondent  were  citizens  of  Connecticut. 
The  contracts  of  employment  between  them 
were  made  in  Connecticut,  to  be  performed 
partly  within  and  partly  without  the  state. 

The  parties  to  each  contract  had  accepted 
the  provisions  of  part  B  of  our  workmen's 
compensation  act.  As  a  consequence,  the 
act  became  a  part  of  these  contracts,  part 
consideration  of  which  was  the  promise  of 
the  employer  to  pay  the  compensation  for 
injury  provided  by  the  act,  and  the  promise 
of  the  employee  to  accept  such  compensation 
in  full  for  all  rights  and  claims  arising  out 
of  injuries  sustained  in  the  course  of  his 
employment.  The  relation  arising  between 
these  employers  and  employees  was  that  of 
contract.  Recovery  was  not  dependent  up- 
on the  fault  of  the  employer,  but  upon  the 
terms  of  the  contract  made.  Acceptance  of 
the  act,  whether  made  expressly  or  im- 
pliedly,  as  permitted  by  the  act,  made  its 
provisions  a  part  of  these  contracts  of  em- 
ployment. The  significance  of  the  contract 
relation  is  foundational  in  the  considera- 
tion of  these  cases,  as,  indeed,  it  must  be 
L.R.A.1916A. 


in  the  consideration  of  many  of  the  ques- 
tions likely  to  arise  under  any  compensation 
act  contractual  in  character. 

Since  the  injury  for  which  compensation 
is  sought  occurred  in  the  navigable  waters 
of  New  Jersey,  the  respondent  insists  that 
the  admiralty  court  has  exclusive  juris- 
diction. Maritime  torts,  contracts,  and 
claims  are  cognizable  in  admiralty.  Torts 
depend  on  locality;  contracts  and  claims, 
upon  their  character.  As  to  in  rein  actions, 
the  jurisdiction  of  the  admiralty  court  is 
exclusive.  As  to  personal  actions,  it  is  not. 

The  clause  in  the  judiciary  act  of  1789, 
now  §  256,  chap.  231,  act  March  3,  1911 
(the  Judicial  Code  of  the  United  States), 
"saving  to  suitors  in  all  cases  the  right 
of  a  common-law  remedy,  where  the  com- 
mon law  is  competent  to  give  it"  [36 
Stat.  at  L.  1161,  Comp.  Stat.  1913,  §  1233], 
was  inserted  in  order  to  make  clear  that 
the  grant  of  judicial  power  to  the  Unit- 
ed States  in  all  cases  of  admiralty  did 
not  deprive  the  suitor  of  his  common- 
law  remedies.  The  common-law  remedies 
do  not  mean  remedies  in  the  common-law 
courts.  They  embrace  all  methods  of  en- 
forcing rights  and  redressing  injuries 
known  to  the  common  or  statutory  law. 
Our  state  courts  have,  from  the  beginning, 
enforced  remedies  to  redress  torts  and  sus- 
tain rights  arising  under  contracts,  and 
their  jurisdiction  so  to  do  has  been  from 
the  earliest  time  an  established  judicial 
fact.  The  Hine  v.  Trevor,  4  Wall.  555,  567, 
18  L.  ed.  451,  455. 

The  jurisdiction  of  the  state  courts  over 
torts  occurring  on  that  part  of  the  sea  not 
under  the  control  of  a  state  is  admitted. 
Martin  v.  Hunter,  1  Wheat.  304,  337,  4  L. 
ed.  97,  105.  And  likewise  for  a  similar  reason 
the  jurisdiction  of  the  state  courts  over 
torts  occurring  in  the  navigable  waters  of 
the  state  is  established.  The  Hamilton 
(Old  Dominion  S.  S.  Co.  v.  Gilmore)  207 
U.  S.  398,  403,  52  L.  ed.  264,  269,  28  Sup. 
Ct.  Rep.  133.  If  this  proceeding  were  one 
to  secure  a  recovery  for  a  tort,  the  place  of 
the  injury  would  determine  the  right  of 
recovery.  Pendar  v.  H.  &  B.  American 
Mach.  Co.  35  R.  I.  321,  ante,  428,  87  Atl. 
1,  4  N.  C.  C.  A.  600.  The  attempt  in  this 
proceeding  is  to  secure,  through  a  procedure 
prescribed  by  statute,  recovery  of  compensa- 
tion for  injury  under  a  contract  authorized 
by  statute. 

The  contract  in  question  may  be  assumed 
to  be  a  maritime  one.  That  would  give  the 
admiralty  court  the  right  to  take  jurisdic- 
tion over  it.  It  could  not  take  from  our 
courts  jurisdiction  over  a  contract  made  in 
Connecticut  by  citizens  of  Connecticut,  nor 
prevent  its  enforcement  wherever  it  is  oper- 


440 


WORKMEN'S  COMPENSATION. 


ative  by  the  procedure  of  the  state  of  its 
origin.  This  contract  is  to  be  interpreted 
and  enforced  by  the  application  of  the  same 
principles  accorded  any  contract.  A  con- 
tract for  work  to  be  done,  or  services  to  be 
performed,  or  goods  to  be  delivered,  in  a 
jurisdiction  other  than  the  place  of  con- 
tract, is  as  enforceable  in  the  state  where 
the  contract  was  made  as  in  that  where  it 
was  to  be  performed,  unless  the  contract  be 
against  the  law  or  the  public  policy  of  that 
jurisdiction,  or  its  legal  machinery  is  in- 
appropriate or  inadequate  to  its  enforce- 
ment. Plainly,  this  proceeding  is  a  per- 
sonal action,  and  not  one  in  rem.  The 
admiralty  court  has  not  exclusive  jurisdic- 
tion. Knapp,  S.  &  Co.  Co.  v.  McCaffrey, 
177  U.  S.  038,  643,  648,  44' L.  ed.  921,  924, 
926,  20  Sup.  Ct.  Rep.  824;  Schoonmaker  v. 
Gilmore,  102  U.  S.  118,  26  L.  ed.  95;  Leon 
v.  Galceran,  11  Wall.  185,  20  L.  ed.  74; 
The  Belfast,  7  Wall.  624,  19  L.  ed.  266; 
The  Hine  v.  Trevor,  4  Wall.  555,  567,  568, 
18  L.  ed.  451,  455;  Manchester  v.  Massa- 
chusetts, 139  U.  S.  240,  262,  35  L.  ed.  159, 
166,  11  Sup.  Ct.  Rep.  559. 

Again,  it  is  insisted  that  an  action  for 
the  injury  in  question  is  given  in  the  ad- 
miralty court,  and  hence,  under  §  40  of  the 
compensation  act,  it  does  not  apply  to  this 
case.  By  this  section  the  liability  must 
have  occurred  in  interstate  or  foreign  com- 
merce. Ihere  is  nothing  in  the  record  to 
indicate  whether  the  injury  occurred  while 
the  employee  was  engaged  in  interstate  or 
foreign  commerce.  If  this  be  disregarded, 
it  is  still  manifest  this  section  has  no  ap- 
plication. The  laws  of  the  United  States 
do  not  provide  for  compensation  such  as 
this  contract  gives,  nor  for  a  recovery  for 
death  or  injury  not  predicated  upon  fault. 
Congress  has  not  as  yet  legislated  in  regard 
to  injuries  occurring  in  interstate  commerce 
by  water;  the  state  therefore  may.  Stoll 
v.  Pacific  Coast  S.  S.  Co.  (D.  C.)  205  Fed. 
169. 

Presumably  §  40  and  similar  provisions 
in  other  compensation  acts  have  reference 
to  the  Federal  employers'  liability  act. 
Where  the  injury  arises  from  a  cause  not 
covered  by  the  Federal  act,  this  section  does 
not  apply.  To  come  within  the  Federal 
act  there  must  be  interstate  traffic,  inter- 
state employment,  and  negligence.  Though 
the  first  two  conditions  be  present  in  this 
proceeding,  the  latter  is  not.  Note  to  6 
Negligence  and  Compensation  Cases,  anno, 
p.  920.  It  is  not  claimed,  nor  do  we  see 
how  it  could  be  with  success,  that  a  state 
may  not  provide  that  contracts  of  employ- 
ment entered  into  within  its  bounds  may 
include  compensation  for  injury  arising 
out  of  and  in  the  course  of  the  employ- 
ment in  another  jurisdiction. 
L.R.A.1916A. 


We  come,  then,  to  the  next  question, — 
whether  our  compensation  act  provides  for 
compensation  for  injuries  received  outside 
our  state,  and  arising  out  of  and  in  the 
course  of  the  employment.  The  respondent 
insists  that  our  act  has  no  extraterritorial 
effect.  That  is  not  the  precise  question  to 
be  determined,  but,  rather,  whether  our  act 
provides  for  compensation  arising  out  of  a 
contract  of  employment  authorized  by  our 
act,  for  injuries  suffered  without  our  juris- 
diction. If  our  act  authorizes  such  a  con- 
tract, recovery  may  be  had;  otherwise  not. 

Unless  the  intention  to  have  a  statute 
operate  beyond  the  limits  of  a  state  is  clear- 
ly expressed  or  reasonably  to  be  inferred 
from  the  language  of  the  act,  or  from  its 
purpose,  subject-matter,  or  history,  the  pre- 
sumption is  that  the  statute  is  intended  to. 
have  no  extraterritorial  effect.  A  like  pre- 
sumption should  control  the  operation  of  a 
contract  based  upon  a  statutory  authority. 

We  find  no  clearly  expressed  intention, 
in  our  act  that  the  contract  authorized 
should  operate  without  the  state.  If  found 
in  the  act,  it  must  be  found  as  an  infer- 
ence reasonably  to  be  inferred  from  the 
language  of  the  act,  read  in  the  light  of  ita 
purpose,  subject-matter,  and  history.  In 
our  search  for  such  an  intention  it  is  all 
important  that  we  do  not  forget  the  reme- 
dial character  of  the  act,  and  that  we  con- 
strue its  provisions  broadly  and  liberally 
"in  order  to  effectuate  its  purpose.''  Hotel 
Bond  Co's  Appeal,  89  Conn.  143,  93  AtL 
245-247. 

The  remedy  provided  by  our  compensa- 
tion act  is  substitutionary  in  character,  fur- 
nishing what  was  purposed  to  be  a  more 
humanitarian  and  economical  system  as  a 
substitute  for  one  deemed  wasteful  to  in- 
dustrial enterprises  and  commerce,  and  un- 
fair to  employees.  Its  intent  was  to  afford 
its  protection  to  all  Connecticut  employers 
and  employees  who  might  voluntarily  choose 
to  make  its  provision  for  compensation  for 
injury  a  part  of  their  contracts  of  employ- 
ment. It  assumed  that  accident  is  incident 
to  employment,  and  purposed  to  charge  its 
cost  in  the  case  of  every  injury  not  caused 
by  the  wilful  and  serious  misconduct  or  in- 
toxication of  the  injured  employee  to  the 
industry  in  which  it  occurred.  It  intended 
that  the  employee  should  know  what  com- 
pensation he  or  his  dependents  would  re- 
ceive in  the  event  of  injury,  and  that 
payment  should  be  made  speedily  by  a  pro- 
cedure at  once  simple  and  inexpensive.  It 
intended  that  the  employer  should  know  his 
liability  in  this  regard,  and  so  might  in- 
clude it  among  the  items  charged  to  opera- 
tion. If  our  act  intends  its  contracts  of 
employment  to  include  compensation  for 
injuries  occurring  only  within  our  juris- 


KENNERSON  v.  THAMES  TOWBOAT  CO. 


441 


diction,  it  manifestly  defeats  its  own  ends. 
In  that  case  the  employer  may  not  charge 
to  the  industry  the  compensation  for  in- 
juries occurring  without  the  state,  and  the 
employee  or  his  dependents  may  not  col- 
lect the  same.  Neither  employer  nor  em- 
ployee can  know  what  portion  of  this  period 
of  emploj'inent  will  be  subject  to  the  pro- 
visions of  the  act,  and  no  provision  for  in- 
surance of  this  liability  will  be  practically 
possible,  since  it  may  not  ordinarily  be 
known  what  part  of  the  service  will  be  in 
and  what  part  out  of  the  state,  or  in  what 
jurisdiction  the  service  will  be  performed, 
in  industries  and  commercial  enterprises 
engaged  in  intrastate  and  interstate  em- 
ployment. The  state  boundary  is  not  the 
limit  of  very  many  businesses.  To  subject 
them  to  the  laws  of  the  many  jurisdictions 
in  which  they  may  be  engaged  will  be  es- 
pecially burdensome  to  them,  and  involve 
them  probably  in  greater  expense  and  lia- 
bility and  far  greater  difficulties  than  un- 
der the  old  system.  Equally  hard  will 
it  prove  to  the  employee  since  he  must  pur- 
sue his  remedy  in  the  state  of  the  accident, 
or  the  Federal  court  applying  that  state's 
law,  and  thus  he  may  be  brought  under  any 
one  of  many  different  compensation  acts, 
with  whose  provisions  he  cannot  hope  to 
be  familiar,  some  acts  contractual  in  char- 
acter, some  compulsory,  some  optional,  and 
some  ex  delicto,  and  he  may  find  he  has  for- 
feited the  benefit  of  the  foreign  act  through 
failure  to  comply  with  its  provisions.  A 
reading  of  the  several  acts  now  in  force 
convinces  us  that  these  difficulties  are  not 
imaginative,  but  imminent  actualities. 

Is  it  reasonable  to  infer  that  our  legis- 
lature, inaugurating  a  new  system,  based 
upon  humanitarian  and  economical  consid- 
erations, should  intentionally  frustrate  the 
object  of  the  new  system,  and  cast  a  mul- 
titude of  employers  and  employees  into  a 
maelstrom  of  trouble,  uncertainty,  and  lia- 
bility? On  the  other  hand,  is  it  not  reason- 
able to  infer  that  the  legislature,  having 
bottomed  the  right  to  compensation  upon 
contract,  deemed  unimportant  the  place  of 
injury,  since  it  must  be  presumed  to  have 
known  that  "the  contract,  and  not  the  place 
of  injury,  would  govern  the  recovery.  Such 
a  construction  of  the  act  would  lift  in- 
superable burdens  from  industry  and  com- 
merce and  workmen,  and  give  to  each  his 
course  and  the  ascertained  fruits  of  the 
contract  of  his  will.  Whether  the  contract 
shall  include  injuries  in  a  jurisdiction 
other  than  where  the  contract  was  made  is 
determined  by  the  expressions  or  implica- 
tions of  each  act. 

Section  1,  pt.  A,  of  our  act,  recites  that, 
"in  an  action  to  recover  damages  for  per- 
L.R.A.1916A. 


sonal  injury,"  certain  defenses  shall  not  be 
available.  Here  is  no  limitation  to  injuries 
received  within  the  state.  We,  through 
comity,  enforce  actions  for  injuries  received 
outside  the  state  when  not  against  our  law 
or  public  policy.  The  natural  construction 
of  this  language  makes  it  include  every  ac- 
tion, wherever  it  originates. 

Section  1,  pt.  B;  recites  that  when  em- 
ployer and  employee  have  accepted  part  B, 
the  employer  shall  not  be  liable  to  any  ac- 
tion for  damages  for  personal  injury  sus- 
tained by  his  employee  in  the  course  of  his 
employment,  but  the  employer  shall  pay 
compensation  on  account  of  such  injury,  as 
provided  by  the  act.  Do  not  the  words  "any 
action"  mean  what  they  say  ?  And  have 
we  any  more  right  to  insert  after  them 
"within  the  state"  than  "within  or  with- 
out the  state?"  In  this  section  the  accept- 
ance of  the  act  is,  by  its  express  terms,  a 
renunciation  and  waiver  of  all  rights  and 
claims  arising  out  of  injuries  sustained  in 
the  course  of  the  employment,  except  as 
specified.  It  seems  to  us  plain  that  the 
rights  and  claims  waived  are  not  merely 
those  arising  in  Connecticut,  but  anywhere. 

In  §  8,  pt.  B,  compensation  is  required 
to  be  paid  for  "any  injury"  which  incapaci- 
tates for  more  than  two  weeks.  There  is 
no  warrant  for  construing  "any  injury"  to 
consist  of  one  arising  within  the  state. 

By  §  20  every  employer  who  has  accept- 
ed part  B  "shall  keep  a  record  of  such  in- 
juries sustained  by  his  employees  in  the 
course  of  their  employment  .  .  .  and 
.  .  .  send  each  week  to  the  commissioner 
such  report  of  said  injuries  as  the  commis- 
sioner shall  require."  It  cannot  be  that 
the  record  intended  was  solely  of  the  in- 
juries happening  within  the  state.  Obvi- 
ously it  was  intended  to  embrace  all 
injuries  occurring  to  such  employees  every- 
where; any  other  construction  would  do 
violence  to  the  ordinary  meaning  of  the 
word  used  and  to  the  manifest  purpose  in 
keeping  the  record. 

Similarly  the  notice  of  injury  of  §  21,  and 
the  voluntary  agreement  of  §  22,  relate  to 
every  injury,  and  not  merely  those  occur- 
ring within  the  state. 

Under  §  29  any  employer  may  enter  into 
a  substitute  system  of  compensation  with 
his  employees  in  lieu  of  the  compensation 
of  the  act.  The  legislature  had  the  un- 
doubted power  to  make  the  substitute  sys- 
tem apply  to  injuries  without  as  well  as 
those  within  the  state.  Is  it  likely  that  the 
legislature  intended  a  substitute  system  ap- 
plicable to  employees  when  employed  with- 
in the  state,  and  inapplicable  when  em- 
ployed elsewhere?  How  could  the  employer 
I  engaged  in  intrastate  and  interstate  em- 


442 


WORKMEN'S  COMPENSATION. 


ployment  take  advantage  of  the  substitute 
system?  If  the  agreement  of  this  charac- 
ter had  to  be  confined  to  the  injuries  re- 
ceived in  the  state,  neither  employer  nor 
employee  would  enter  into  it.  Practically 
the  provision  for  a  substitute  system  would 
be  in  part  nugatory. 

Certain  sections  of  the  act  are  referred 
to  as  indicating  that  the  act  has  relation 
exclusively  to  intrastate  injuries.  Thus, 
§  7,  which  requires  the  employer  to  furnish 
medical  and  surgical  aid,  and  §  23,  which 
requires  the  injured  employee  to  submit 
himself  to  examination  by  a  reputable 
physician,  are  said  necessarily  to  refer  to 
Connecticut  practitioners.  We  see  no  prac- 
tical reason  why  these  sections  may  not 
refer  to  the  practitioner  without  the  state 
as  well  as  within  it.  Unless  this  limitation 
be  read  in  the  section,  the  language  used 
does  not  express  the  limitation. 

Under  §  17  each  commissioner  has  juris- 
diction of  all  claims  and  questions  arising 
in  his  district :  hence  it  is  urged  no  com- 
missioner has  jurisdiction  of  the  cases  at 
bar.  We  think  the  claims  and  questions 
relating  to  these  cases  may  reasonably  be 
said  to  arise  in  the  place  of  domicil  of  the 
injured,  if  in  the  state,  which  in  these  cases 
is  the  place  of  the  contracts,  and  the  place 
from  which  the  respondent  hails. 

Section  22  provides  that  the  voluntary 
agreement,  and  §  26,  that  the  awards  of 
the  commissioners,  shall  be  filed  in  the  of- 
fice of  the  clerk  of  the  superior  court  for 
the  county  "in  which  the  injury  occurred." 
These  provisions  lend  force  to  the  respond- 
ent's claim.  But  provisions  of  this  charac- 
ter should  not  be  held  to  be  mandatory,  and 
thus  permitted  to  defeat  a  primary  pur- 
pose of  the  act.  If  the  voluntary  agreement 
and  the  award  be  filed  in  the  place  of  the 
agreement  or  contract,  this  will  be  as  close 
a  compliance  with  these  provisions  as  the 
act  admits  of  in  cases  of  injuries  occur- 
ring without  the  state. 

The  provision  in  §  27,  that  an  appeal 
from  the  finding  and  award  may  be  had 
"to  the  superior  court  for  the  county  in 
which  the  injury  was  sustained,"  gives  a 
stronger  color  to  the  respondent's  claim 
than  any  other  section  of  the  act. 

In  legislative  acts  inaugurating  a  new 
system  not  infrequently  are  found  contra- 
dictory provisions,  and  it  becomes  the  duty 
of  the  court  to  reconcile  them  so  far  as  it 
can.  It  does  this  whenever  it  is  possible 
in  such  way  as  to  sustain  the  act  and  carry 
out  its  purposes.  This  we  believe  to  be  our 
present  duty.  In  a  sense  the  injury  may  be 
said  to  have  been  sustained  in  the  place  of 
the  contract,  and  if  appeal  is  taken,  in 
cases  of  injury  occurring  without  the  state, 
L.R.A.1916A/ 


to  the  county  of  the  contract,  the  terms  of 
the  act  will  be  reasonably  satisfied.  The 
precise  question  we  are  considering  has  been 
the  subject  of  discussion  in  two  cases. 
One  under  the  New  Jersey  act,  a  contrac- 
tual optional  act  very  similar  to  our  own, 
where  the  trial  court,  in  Deeny  v.  Wright 
&  C.  Lighterage  Co.  36  N.  J.  L.  J.  121,  con- 
strued the  contract  under  the  New  Jersey 
act  as  we  construe  these  contracts.  The 
other  under  the  Massachusetts  act,  where 
the  supreme  judicial  court  construed  their 
act  as  confined  to  accidents  within  the  state. 
Gould's  Case,  215  Mass.  480,  102  N.  E.  693, 
Ann.  Cas.  1914D,  372,  4  N.  C.  C.  A.  60. 
We  must  accept  the  construction  accorded 
the  Massachusetts  act  by  its  supreme  judi- 
cial court.  It  may  be  well,  however,  to 
point  out  that  the  court  does  not  state  that 
its  act  is  contractual  in  character.  That, 
as  we  have  indicated,  is  of  final  importance 
in  the  conclusion  we  reach  concerning  <>. 
own  act.  Then,  too,  under  the  Massachu- 
setts act,  the  employee  is  merely  the  bene- 
ficiary under  a  contract  between  the  employ- 
er and  the  insurer ;  with  us  the  employer  and 
employee  enter  into  a  contract  relation.  In 
its  reference  to  and  comment  upon  certain 
sections  of  their  act  the  court  says  that 
it  must  be  found  within  the  act  from  "un- 
equivocal language,"  or  "plain  and  unmis- 
takable words,"  that  the  act  was  intended 
to  relate  to  injuries  without  the  common- 
wealth. We  have  adopted  a  broader  rule 
We  read  our  act  in  the  light  of  the  purpose, 
subject-matter,  and  history  of  the  act  to 
determine  whether  it  expressly  or  by  rea- 
sonable inference  intended  to  include  in  its 
contract  injuries  without  our  jurisdiction. 
This  is  our  ordinary  rule  in  the  interpreta- 
tion of  statutes.  The  Massachusetts  court 
states  that  "the  subject  of  personal  injuries 
received  by  a  workman  in  the  course  of  his 
employment  is  within  the  control  of  the 
sovereign  power  where  the  injury  occurs." 
And  it  argues  that,  if  the  act  had  intend- 
ed employers  and  employees  from  different 
states  to  carry  their  domiciliary  personal- 
injury  law  with  them  into  other  jurisdic- 
tions, it  would  have  expressed  its  intent  in 
unambiguous  words.  This  argument  con- 
cerns a  proceeding  to  enforce  an  ex  delicto 
claim,  not  one  for  compensation  by  way  of 
contract.  It  is  also  argued  that,  if  an  act 
is  given  extraterritorial  force,  similar  effect 
must  be  given  to  like  laws  of  other  states. 
If  contracts  of  employment  cover  compen- 
sation for  injuries  outside  the  state,  recov- 
ery for  these  will  be  governed  by  the  usual 
rules  for  the  construction  and  enforcement 
of  all  contracts.  We  should  give  similar 
effect  to  contracts  of  like  character  to  those 
before  us,  though  made  under  a  compensa- 


KENNERSON  v.  THAMES  TOWBOAT  CO. 


443 


tion  act  of  another  jurisdiction,  provided 
they  did  not  conflict  with  our  law  or  pub- 
lic policy,  and  the  machinery  provided  for 
the  ascertainment  and  collection  of  the 
compensation  could  be  used  in  our  jurisdic- 
tion. 

Where,  as  with  us,  the  determination  of 
the  award  is  committed  to  a  board  or  com- 
mission under  a  specified  procedure,  there 
will  be  serious  obstacles  to  the  enforcement 
pf  the  contract  in  a  foreign  jurisdiction. 
1  Bradbury.  Workmen's  Compensation  Law, 
2d  ed.  p.  52.  If  it  should  be  necessary  to 
so  rule,  no  hardship  would  result.  The 
parties  in  interest  would  be  relegated  to 
the  place  where  they  had  elected  to  make 
their  contract,  and  no  questions  of  conflict 
of  laws  could  arise.  At  the  base  of  this 


question  is  the  character  of  the  compensa- 
'  tion.  Mr.  Bradbury,  repudiating  his  earlier 
view,  stoutly  maintains  that,  if  the  act  be 
contractual,  the  contracts  arising  will,  un- 
less a  contrary  intent  appears,  be  found 
to  cover  injuries  without  as  well  as  within 
the  state.  We  think  his  later  conclusion 
sound  and  one  which  will  prove  beneficial 
alike  to  employer  and  employee. 

The  questions  of  dependency  are  settled 
by  the  findings  of  the  commissioner.  Noth- 
ing appears  to  indicate  that  he  committed 
an  error  of  law  in  making  these  findings 
or  in  drawing  his  conclusions  from  them. 

The  Superior  Court  is  advised  to  render 
its  judgment  dismissing  these  appeals. 


The  other  Judges  concur. 


Annotation — Extraterritorial    jurisdiction    of    workmen's 

act;  conflict  of  laws. 


compensation 


As  to  the  application  and  effect  of 
workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

It  is  not  proposed  to  enter  into  the 
field  of  conflict  of  laws  further  than  to 
state  concisely  the  precise  holding  of  the 
cases  construing  the  workmen's  compen- 
sation statutes.  Any  attempt  to  deduce 
general  rules  from  these  cases  would  be 
misleading,  since  they  are  governed  by 
general  principles  which  are  not  in  any 
way  peculiar  to  these  statutes.  The 
question  of  the  extraterritorial  effect  of 
these  statutes  is  so  interwoven  with  the 
question  of  conflict  of  laws  that  the  two 
subjects  will  be  discussed  together. 

It  is  to  be  noted  that  REYNOLDS  v. 
DAY  and  FENDER  v.  H.  &  B.  AMERICAN 
MACH.  Co.  present  distinct  questions: 
The  first,  whether,  in  a  state  adopting 
the  principles  of  industrial  insurance, 
an  action  for  damages  may  be  main- 
tained in  accordance  with  the  law  of  the 
state  in  which  the  injury  was  received; 
the  second,  whether  an  action  of  dam- 
ages may  be  maintained  in  accordance 
with  a  law  of  the  forum,  where  an  in- 
dustrial insurance  act  is  in  force  in  the 
state  in  which  both  the  contract  of  em- 
ployment was  made  and  the  injury  was 
received. 

Although  the  contract  of  employment 
was  made  in  New  York,  the  New  Jersey 
compensation  act  applies  where  the  in- 
jury occurred  in  New  Jersey,  and  the 
contract  of  employment  contemplated 
the  performance  of  the  employee's  du- 
ties partly  in  New  York  and  partly  in 
New  Jersey,  and  there  was  nothing  in 
the  contract  to  show  that  the  employer 
sought  to  be  exempted  from  the  New 
L.R.A.1916A. 


Jersey  act,  and  he  had  given  no  notice 
under  $  2  of  the  statute  that  he  elected 
not  to  be  bound  by  it.  American  Radi- 
ator Co.  v.  Rogge  (1914)  86  N.  J.  L.  436, 
92  Atl.  85,  affirmed  in  —  N.  J.  — ,  93 
Atl.  1083,  and  followed  in  Davidheiser 
v.  Hay  Foundry  &  Iron  Works  (1915) 
-  N.  J.  — ,  94  Atl.  309,  and  in  West 
Jersey  Trust  Co.  v.  Philadelphia  &  R. 
R.  Co.  (1915)  —  N.  J.  L.  — ,  95  Atl. 
753. 

But  the  New  York  court  has  held  that 
the  provisions  of  the  New  Jersey  stat- 
ute apply  only  where  the  contract  of 
hiring  was  made  in  that  state.  Pensa- 
bene  v.  S.  &  J.  Auditor^  Co.  (1913)  155 
App.  Div.  368, 140  N.  Y.  Supp.  266.  The 
court  held  that  a  complaint  in  an  action 
under  the  New  Jersey  statute,  which 
fails  to  set  up  a  hiring  made  in  that 
state,  will  be  dismissed  on  demurrer. 

The  supreme  court  of  New  York  state 
does  not  have  jurisdiction  of  a  proceed- 
ing under  1  18  of  the  New  Jersey  act, 
which  provides  that  in  case  of  a  dispute 
or  failure  to  agree  upon  a  claim  for  com- 
pensation between  the  employer  and  em- 
ployee, either  party  may  submit  the 
claim  to  the  judge  of  the  court  of  com- 
mon pleas  of  such  county  as  would  have 
jurisdiction  in  a  civil  case,  merely  be- 
cause the  complaint  alleges  that  per- 
sonal service  cannot  be  obtained  upon 
the  defendant,  which  is  a  corporation 
and  has  removed  its  place  of  business 
to  the  state  of  New  York,  in  which  state 
it  was  incorporated.  Lehmann  v.  Ramo 
Films  (1915)  -  -  Misc.  — ,  155  N.  Y. 
Supp.  1032. 

A  workman  cannot  claim  to  be  igno- 
rant of  the  compensation  act  of  Wiscon- 


444 


WORKMEN'S  COMPENSATION. 


sin,  although  the  contract  of  employ- 
ment was  made  in  Minnesota,  in  which 
state  he  worked  for  some  time,  but 
later  went  to  work  in  Wisconsin  at  the 
request  of  the  employer.  Johnson  v. 
Nelson  (1914)  128  Minn.  158,  150  N.  W. 
620. 

There  is  a  sharp  conflict  of  authority 
as  to  whether  or  not  the  compensation 
act  has  extraterritorial  effect.  It  has 
been  held  that  the  Massachusetts  act 
does  not  cover  accidents  occurring  out- 
side the  limits  of  the  state. 

Thus,  in  Gould's  Case  (1913)  215 
Mass.  480,  102  N.  E.  693,  Ann.  Gas. 
1914D,  372,  4  N.  C.  C.  A.  60,  in  holding 
that  the  Massachusetts  act  had  no  appli- 
cation to  accidents  occurring  outside  the 
state,  the  court  said  that,  in  the  absence 
of  unequivocal  language  to  the  contrary, 
it  was  not  to  be  presumed  that  statutes 
respecting  this  matter  are  designed  to 
control  conduct  or  fix  the  rights  of  par- 
ties beyond  the  territorial  limits  of  the 
state.  The  court  further  pointed  out 
that  there  were  several  provisions  of  the 
statute  which  indicate  solely  intrastate 
operation.  It  was  provided  that  the 
employee  who  had  received  an  injury 
should  submit  himself,  on  request,  to  be 
examined  by  a  physician  or  surgeon  au- 
thorized to  practise  medicine  under  the 
laws  of  the  commonwealth;  the  part  of 
the  act  dealing  with  procedure  dealt 
only  with  Boards  and  courts  within  the 
commonwealth ;  the  hearings  of  the  com- 
mittee on  arbitration  were  to  be  held  in 
the  city  or  town  where  an  injury  oc- 
curred; upon  resort  to  the  court,  copies 
of  the  papers  were  to  be  presented  "to 
the  superior  court  for  the  county  in 
which  the  injury  occurred,  or  for  the 
county  of  Suffolk,"  in  which  county  the 
officers  of  the  Industrial  Accident  Board 
were;  employers  were  to  make  report  of 
accidents  within  forty-eight  hours.  The 
Massachusetts  employees'  insurance  as- 
sociation created  by  the  act,  with  power 
to  make  and  enforce  reasonable  rules 
and  regulations  for  the  prevention  of 
injury  on  the  premises  of  the  subscrib- 
ers, "and  to  this  end  its  inspectors  shall 
have  free  access  to  such  premises  during 
working  hours,"  could  have  such  power 
only  within  the  state.  The  act  disclosed 
no  purpose  to  exempt  from  its  operation 
nonresident  employees  of  alien  employ- 
ers while  working  within  the  state,  and 
if  the  Massachusetts  act  is  to  be  in- 
terpreted as  having  extraterritorial 
L.R.A.1916A. 


force,  similar  effect  must  be  accorded  to 
like  laws  of  other  states.  Agreements 
made  by  employees  to  waive  the  pro- 
visions of  the  act  are  made  invalid;  and 
it  was  provided  that  no  payment  under 
the  act  shall  be  liable  in  any  way  for 
debts  of  the  employee.  The  court  also- 
called  attention  to  the  fact  that  the  act 
was  copied  largely  from  the  English 
workmen's  compensation  act  and  that 
that  act,  although  it  has  been  generally 
held  to  be  inoperative  outside  of  the 
United  Kingdom,  in  express  terms,  ap- 
plies to  masters,  seamen,  and  appren- 
tices in  the  sea  service  under  certain 
conditions,  and  definitely  points  out  the 
manner  of  proving  and  enforcing  claims 
for  injury  occurring  therein  with  refer- 
ence plainly  to  those  outside  the  United 
Kingdom,  and  had  the  legislature  in- 
tended to  make  the  act  apply  extraterri- 
torially,  it  should  have  so  expressly  pro- 
vided. 

The  court  further  said  that  a  number 
of  foreign  acts  made  careful  and  definite 
provisions  for  accidents  occurring  out- 
side of  their  territory,  and  in  a  footnote 
the  following  list  was  given :  24  Annual 
R3port  of  U.  S.  Com.  of  Labor,  vol.  2 
(1909)  France:  Acts  of  1898,  1902,  1905, 
and  1906,  p.  2501 ;  Austria :  Law  of  1894, 
art.  2,  pp.  2456,  2457;  Belgium:  Act  of 

1903,  art.  26,  p.  2464;  Germany:  Law  of 
1900  (a),  art.  4,  p.  2517  (see  also  German 
Ins.  Code  of  1911,  art.  157,  translated  in 
Boyd,     Workmen's      Compensation,     p. 
1252) ;  Hungary :     Act  No.  19  of  1907, 
arts.  4,  5,  &  6,  p.  2569;  Italy:     Law  of 

1904,  arts.  21  &  25,  p.  2617;  Luxemburg: 
Law  of  1902,  art.  3,  pp.  2621,  2622;  Neth- 
erlands :     Law  of  1901,  art.  9,  p.  2641. 

So,  too,  the  Michigan  act  does  not  ap- 
ply to  injuries  occurring  outside  the 
borders  of  the  state.  Keyes-Davis  Co.  v. 
Alderdyce,  Detroit  Legal  News,  May  3d, 
1913  (Mich.)  3  N.  C.  C.  A.  639,  note. 
The  court  based  its  decision  upon  two 
grounds :  First,  a  general  rule  of  statu- 
tory construction  that  every  statute  is 
confined  in  its  operation  to  persons, 
property,  and  rights  which  are  within 
the  jurisdiction  of  the  legislature  which 
enacted  it;  second,  the  provision  of  pt. 
3,  $  8,  of  the  act,  which  requires  that 
the  hearing  to  adjudicate  disputed 
claims  for  compensation  "shall  be  held 
at  the  locality  where  the  injury  occur- 
red." 

Section  7  of  the  English  act  makes 
provision  for  awarding  compensation  for 


EXTRATERRITORIAL  EFFECT;  CONFLICT  OF  LAWS. 


445 


injuries  to  workmen  in  the  sea  service; 
except  as  it  is  expressly  given  in  §  7, 
the  act  has  no  application  outside  the 
territorial  limits  of  the  United  Kingdom. 
Tomalin  v.  S.  Pearson  &  Son  [1909]  2 
K.  B.  (Eng.)  61,  78  L.  J.  K.  B.  N.  S. 
863,  100  L.  T.  N.  S.  685,  25  Times  L.  R. 
477,  2  B.  W.  C.  C.  1  (English  contractor 
not  liable  for  compensation  for  death 
of  workman  engaged  in  working  for  him 
in  the  island  of  Malta) ;  Schwartz  y.  In- 
dia Rubber,  Gutta  Percha  &  Teleg. 
Works  Co.  [1912]  2  K.  B.  (Eng.)  299, 
[1912]  W.  N.  98,  28  Times  L.  R.  331,  81 
L.  J.  K.  B.  N.  S.  780,  [1912]  W.  C.  Rep. 
190,  106  L.  T.  N.  S.  706,  5  B.  W.  C.  C. 
390  (no  compensation  for  death  of  work- 
man lost  in  the  Bay  of  Biscay  while  on 
his  way  to  work  at  Tenerisse) ;  Hicks  v. 
Maxton  (1907,  C.  C.)  124  L.  T.  Jo. 
(Eng.)  135,  1  B.  W.  C.  C.  150  (no  com- 
pensation for  injuries  to  charwoman  tak- 
en from  England  by  a  French  woman  to 
do  work  for  her  in  France  and  injured 
while  in  that  country). 

A  different  rule,  however,  prevails  in 
other  states. 

That  the  Connecticut  statute  has  an 
extraterritorial  effect  is  the  decision  in 
KENNERSON  v.  THAMES  TOWBOAT  Co. 

So,  it  was  held  in  Rounsaville  v.  Cen- 
tral R.  Co.  (1915)  —  N.  J.  L.  — ,  94  All. 
392,  that  the  fact  that  the  accident  hap- 
pened in  another  state  is  irrelevant  when 
the  proceedings  were  brought  in  New 
Jersey  for  liability  under  the  New 
Jersey  act,  and  the  contract  of  employ- 
ment was  a  New  Jersey  contract. 

And  the  New  York  act  has  been  held 
to  apply  to  accidents  which  have  oc- 
curred outside  of  the  state. 

One  argument  in  support  of  the  con- 
tention thnt  the  New  York  statute  ap- 
plies extraterritorially  is  that  the 
amount  which  an  employer  is  required 
to  pay  into  the  insurance  fund  is  based 
solely  upon  the  size  of  his  pay  roll  and 
the  character  of  his  business,  and  the 
fact  that  one  of  his  employees  may  from 
time  to  time  be  outside  the  state  in  the 
course  of  his  employment  does  not  di- 
minish the  amount  of  premium  which  the 
employer  has  to  pay.  Spratt  v.  Sweeney 
&  G.  Co.  (1915)  168  App.  Div.  403,  153 
N.  Y.  Supp.  505.  The  court  said :  "The 
employee  cannot  refuse  to  do  the  mas- 
ter's bidding  within  the  course  of  the 
employment  upon  the  ground  that  it  re- 
quires him  to  pass  over  the  state  line, 
and  the  law  cannot  contemplate  that  he 
shall  lose  the  benefit  of  the  act  because 
L.R.A.1936A. 


he  is  performing  the  duties  of  his  em- 
ployment. The  statute  must  have  a 
broad  and  liberal  interpretation  to  pro- 
tect the  employee  for  all  injuries  re- 
ceived in  the  course  of  the  employment, 
and  to  charge  upon  the  fund  or  the  in- 
surer the  loss  which  otherwise  must  fall 
upon  the  master.  By  complying  with  the 
I  act  the  employer  is  guaranteed  protec- 
tion, and  the  moneys  which  he  has  paid 
into  the  fund  or  secured  to  be  paid  must 
bear  the  losses  which  they  were  intended 
to  meet ;  otherwise  the  employer  and  the 
employee  are  suffering  at  the  hands  of 
the  state." 

The  New  York  statute  expressly  ap- 
plies to  the  operation  without  the  state, 
"including  repair,  of  vessels  other  than 
vessels  of  other  states  or  countries  used 
in  interstate  or  foreign  commerce."  In 
Edwardsen  v.  Jarvis  Lighterage  Co. 
(1915)  168  App.  Div.  368,  153  N.  Y. 
Supp.  391,  it  was  held  that  the  captain 
of  a  lighter  who  was  injured  while  his 
lighter  was  being  unloaded  was  engaged 
in  the  "operation"  of  the  lighter,  and 
consequently  was  entitled  to  compensa- 
tion although  the  injury  took  place  out- 
side -of  the  state. 

A  lower  New  York  court  has  held  that 
the  workmen's  compensation  act  of  Ger- 
many, to  which  both  the  employer  and 
employee  subscribe,  is  a  bar  to  an  action 
in  New  York  state  for  injuries  to  the 
employee  received  while  on  the  vessel 
of  defendant  as  it  was  leaving  quaran- 
tine to  dock  at  New  York  City.  Schweit- 
zer v.  Hamburg- American  Line  (1912) 
78  Misc.  448,  138  N.  Y.  Supp.  944.  The 
court  said :  "A  foreign  law  to  which 
both  employer  and  employee  engaged  in 
interstate  and  foreign  commerce  and 
transportation  have  subscribed,  and  up- 
on the  basis  of  which  the  contract  of  em- 
ployment was  made  and  entered  into, 
where  the  cars  or  ships  of  the  employer 
enter  our  state,  and  in  or  upon  which, 
while  within  our  borders,  an  accident  oc- 
curs to  the  employee  through  his  em- 
ployer's negligence,  particularly  where 
the  contract  of  employment  provides  for 
a  fixed  compensation  in  case  of  specified 
injury  to  take  the  place  of  a  right  of  ac- 
tion at  law,  and  which  is  lawful  both  in 
the  place  where  made  and  that  in  which 
the  cause  of  action  arose,  should  obtain 
recognition  and  enforcement  here.  To 
hold  otherwise  works  not  for  benefit,  but 
rather  injury  to  our  interstate  and  for- 
eign commerce."  W.  M.  G. 


446 


WORKMEN'S  COMPENSATION. 


WASHINGTON  SUPREME  COURT. 

(Department  No.  2.) 

STATE     OF     WASHINGTON     EX     REL. 
FRANK  JARVIS 

v. 

FLOYD  L.  DAGGETT  et  al.,  Commission- 
ers of  the  Industrial  Insurance  Commis- 
sion of  the  State  of  Washington. 

(—  Wash.  — ,  151  Pac.  648.) 

Master  and  servant  —  injury  on  vessel 
—  applicability  of  state  workmen's 
compensation  act. 

A  state  cannot  extend  the  provisions  of  a 
workmen's  compensation  act  to  injuries  oc- 
curring on  vessels  on  local  waters  within 
the  admiralty  jurisdiction  of  the  United 
States,  with  respect  to  which  Congress  has 
established  a  measure  of  liability  limited 
to  the  value  of  the  owner's  interest  in  the 
vessel  and  freight  pending  at  the  time  of 
the  injury. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(September  13,  1915.) 

A  PPLICATION  for  a  writ  of  mandamus 
XX  to  compel  respondents  to  make  a  de- 
mand upon  certain  navigation  companies 
for  premiums,  in  accordance  with  the  sched- 
ule set  out  in  the  workmen's  compensation 
act.  Writ  denied. 

The  facts  are  stated  in  the  opinion. 

Mr.   Charles  H.   Miller,  for  petitioner: 

The  act  of  the  legislature  of  the  state  of 
Washington  is  not  a  regulation  of  com- 
merce, but  of  police;  and,  being  so,  it  was 
passed  in  the  exercise  of  a  power  which 
rightfully  belonged  to  the  state.  The  state 
of  Washington  possessed  the  power  to  pass 
this  law  before  the  adoption  of  the  Con- 
stitution of  the  United  States.  The  end 
and  means  here  used  are  within  the  com- 
petency of  the  states. 

State  ex  rel.  Davis-Smith  Co.  v.  Clausen, 
65  Wash.  156,  37  L.R.A.(N.S-)  466,  117 
Pac.  1101,  2  N.  C.  C.  A.  823,  3  N.  C.  C.  A. 
599;  State  v.  Mountain  Timber  Co.  75 
Wash.  581,  L.R.A.— ,  — ,  135  Pac!.  645,  4 
N.  C.  C.  A.  811;  Gibbons  v.  Ogden,  9  Wheat. 
1,  6  L.  ed.  23;  New  York  v.  Miln,  11  Pet. 
102,  9  L.  ed.  648;  Boston  Beer  Co.  v.  Massa- 
chusetts, 97  U.  S.  25,  24  L.  ed.  989;  Stone 
v.  Mississippi,  101  U.  S.  814,  25  L.  ed. 
1079;  Bowman  v.  Chicago  &  N.  W.  R.  Co. 
125  U.  S.  465,  31  L.  -6d.  700,  1  Inters.  Com. 
Rep.  823,  8  Sup.  Ct.  Rep.  689,  1062; 
Wilmington  Transp.  Co.  v.  Railroad  Com- 


Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to  the  limitation  of  the  application  of 
state     compensation     statutes    by     Federal 
laws,  see  annotation,  post,  461. 
L.R.A.1916A. 


mission,  236  U.  S.  151,  59  L.  ed.  508, 
P.U.R.1915A,  845,  35  Sup.  Ct.  Rep.  276. 

A  marine  tort  or  a  tort  committed  upon 
a  vessel  engaged  in  business  wholly  within 
the  state  is  actionable  at  common  law. 

The  Hamilton  (Old  Dominion  S.  S.  Co.  v. 
.Gilmore)  207  U.  S.  398,  52  L.  ed.  264,  28 
Sup.  Ct.  Rep.  133;  Woolsey,  International 
Law,  6th  ed.  p.  72;  Martin  v.  Hunter,  1 
Wheat.  304,  4  L.  ed.  97 ;  The  Hine  v.  Trevor, 
4  Wall,  555,  18  L.  ed.  451;  Leon  v.  Gal- 
ceran,  11  Wall.  185,  20  L.  ed.  74;  Manches- 
ter v.  Massachusetts,  139  U.  S.  240,  35  L. 
ed.  159,  11  Sup.  Ct.  Rep.  559. 

Messrs.  W.  V.  Tanner,  Attorney  Gen- 
eral, and  John  M.  Wilson,  Assistant  At- 
torney General,  for  respondents: 

If  a  voyage  is  made  upon  navigable 
waters  of  the  United  States,  the  fact  that 
the  vessel  is  engaged  solely  in  intrastate 
commerce,  carrying  on  trade  between  ports 
of  the  same  state,  does  not  take  the  case 
out  of  the  jurisdiction  of  admiralty. 

1  Cyc.  817;  The  Osceola,  189  U.  S.  158, 
175,  47  L.  ed.  760,  764,  23  Sup.  Ct.  Rep. 
483;  Workman  v.  New  York,  179  U.  S.  558, 
45  L.  ed.  319,  21  Sup.  Ct.  Rep.  212;  The 
Thielbek,  211  Fed.  685. 

The  particular  injury  described  in  the 
petition  constitutes  a  maritime  tort,  and  is 
within  the  jurisdiction  of  the  admiralty 
court. 

Atlantic  Transport  Co.  v.  Imbrovek,  234 
U.  S.  52,  58  L.  ed.  1208,  51  L.R.A.(N.S.) 
1157,  34  Sup.  Ct.  Rep.  733. 

The  state  legislature  is  without  power  to 
prescribe  an  exclusive  remedy,  or  to  im- 
pose upon  the  employer  an  additional  bur- 
den in  the  payment  of  premiums,  as  a  con- 
\  sideration  for  relieving  the  employer  from 
actions  for  injuries  which  may  be  brought 
by  the  workman,  unless  it  can  protect  the 
I  employer  from  all  remedies  which  the  in- 
j  jured  workman  mav  have  against  him. 

The  Fred  E.  Sander,  208  Fed.  724,  4  N. 
C.  C.  A.  891. 

Mr.  J.  S.  Robinson,  amicus  curise: 

The  fact  that  seamen  have  remedies  in 
admiralty  prevents  the  application  of  the 
workmen's  compensation  act  to  the  opera- 
tion of  Puget  Sound  steamboats  engaged 
exclusively  in  intrastate  trade. 

Report  of  the  Atty.  Gen.  1911-1912,  p. 
155;  Stoll  v.  Pacific  Coast  S.  S.  Co.  205 
Fed.  169;  The  Fred  E.  Sander,  208  Fed. 
725,  4  N.  C.  C.  A.  891,  212  Fed.  545.  5  N. 
C.  C.  A.  97;  Murray  v.  Pacific  Coast  S.  S. 
Co.  207  Fed.  688;  Meese  v.  Northern  P.  R. 
Co.  206  Fed.  222,  127  C.  C.  A.  622,  211 
Fed.  254,  4  N.  C.  C.  A.  819;  Barrett  v. 
Grays  Harbor  Commercial  Co.  209  Fed.  95, 
4  N.  C.  C.  A.  756. 

Seamen  are  a  class  apart  from  all  other 
classes  of  workmen  named  in  the  act 


STATE  EX  REL.  JARVIS  v.  DAGGETT. 


447 


Robertson  v.  Baldwin,  165  U.  S.  275,  285, 
41  L.  ed.  715,  719,  17  Sup.  Ct.  Rep.  326; 
The  Osceola,  189  U.  S.  159,  47  L.  ed.  760, 
23  Sup.  Ct.  Rep.  483. 

Vessel  operators  are  a  class  apart  from 
other  employers  named  in  the  act,  because 
their  vessels  are  wholly  under  the  control 
of  Congress. 

White's  Bank  v.  Smith  (White's  Bank  v. 
The  Robert  Emmett)  7  Wall.  646.  653,  19 
L.  ed.  211,  213;  Harrison  v.  St.  Louis  & 
S.  F.  R.  Co.  232  U.  S.  328,  58  L.  ed.  624, 
L.R.A.1915F,  1187,  34  Sup.  Ct.  Rep.  333; 
De  Lovio  v.  Boit,  2  Gall.  398,  Fed.  Cas.  No. 
3,776;  The  Hine  v.  Trevor,  4  Wall.  555, 
570,  18  L.  ed.  451,  456;  The  Glide,  167  U. 
S.  608,  42  L.  ed.  296,  17  Sup.  Ct.  Rep.  930. 

The  power  of  the  Federal  government  to 
enact  legislation  for  the  benefit  of  seamen 
is  exclusive. 

Butler  v.  Boston  &  S.  S.  S.  Co.  130  U.  S. 
527,  555,  32  L.  ed.  1017,  1024,  9  Sup.  Ct. 
Rep.  612;  State  ex  rel.  Davis-Smith  Co.  v. 
Clausen,  65  Wash.  156,  37  L.R.A.(N.S.) 
466,  117  Pac.  1101,  2  N.  C.  C.  A.  823,  3 
N.  C.  C.  A.  599;  Schuede  v.  Zenith  S.  S. 
Co.  216  Fed.  566;  Easton  v.  Iowa,  188  U. 
S.  237,  47  L.  ed.  459,  23  Sup.  Ct.  Rep.  288, 
12  Am.  Crim.  Rep.  522;  Erie  R.  Co.  v. 
New  York,  233  U.  S.  671,  58  L.  ed.  1149, 
52  L.R.A.(N.S.)  266,  34  Sup.  Ct.  Rep.  756, 
Ann.  Cas.  1915D,  138;  Southern  R.  Co.  v. 
Railroad  Commission,  236  U.  S.  439,  59 
L.  ed.  661,  35  Sup.  Ct.  Rep.  305;  Southern 
R.  Co.  v.  Reid,  222  U.  S.  424,  56  L.  ed.  257, 
32  Sup.  Ct.  Rep.  140;  Northern  P.  R.  Co. 
v.  Washington,  222  U.  S.  371,  56  L.  ed. 
237,  32  Sup.  Ct.  Rep.  160. 

Admitting  the  right  of  the  state  to  pass 
the  compensation  act  under  its  police  power, 
the  act,  so  far  as  it  relates  to  seamen  and 
their  employers,  comes  into  conflict  with 
and  is  repugnant  to  existing  Federal  laws. 

Sinnot  v.  Davenport,  22  How.  243,  16 
L.  ed.  243 ;  Missouri,  K.  &  T.  R.  Co.  v.  Har- 
ris, 234  U.  S.  419,  58  L.  ed.  1382,  L.R.A. 
1915E,  942,  34  Sup.  Ct.  Rep.  790;  Norwich 
&  N.  Y.  Transp.  Co.  v.  Wright,  13  Wall. 
104,  20  L.  ed.  585;  Re  Garnett,  141  U.  S. 
1,  35  L.  ed.  631,  11  Sup.  Ct.  Rep.  840; 
Craig  v.  Continental  Ins.  Co.  141  U.  S.  638, 
35  L.  ed.  886,  12  Sup.  Ct.  Rep.  97;  La 
Bourgogne  (Deslions  v.  La  Compagnie 
Ge'ne'rale  Transatlantique)  210  U.  S.  95,  52 
L.  ed.  973,  28  Sup.  Ct.  Rep.  664;  Oceanic 
Steam  Nav.  Co.  v.  Watkins,  223  U.  S.  723, 
56  L.  ed.  631,  32  Sup.  Ct.  Rep.  524;  Provi- 
dence &  N.  Y.  S.  S.  Co.  v.  Hill  Mfg.  Co.  109 
U.  S.  578,  27  L.  ed.  1038,  3  Sup.  Ct.  Rep 
379,  617;  Seese  v.  Monongahela  River  Con- 
sol.  Coal  &  Coke  Co.  155  Fed.  507;  Gulf,  C. 
&  S.  F.  R.  Co.  v.  Hefley,  158  U.  S.  99,  104, 
39  L.  ed.  910,  913,  15  Sup.  Ct.  Rep.  802. 
L.R.A.1916A. 


Main,  J.,  delivered  the  opinion  of  the 
court : 

This  is  an  original  application  in  this 
court  for  a  writ  of  mandate  to  compel  the 
members  of  the  state  Industrial  Insurance 
Commission  to  make  a  demand  upon  the 
Puget  Sound  Navigation  Company  and  the 
Inland  Navigation  Company  for  the  per- 
centage of  the  pay  rolls  of  these  companies, 
in  accordance  with  the  schedule  set  out  in 
the  workmen's  compensation  act  passed  at 
the  legislative  session  for  the  year  1911 
(Laws  1911,  chap.  74). 

The  facts  as  stated  in  the  petition,  and 
the  affidavit  in  support  thereof,  are  in  sub- 
stance as  follows:  On  the  31st  day  of 
May,  1914,  and  for  some  time  prior  thereto, 
the  Puget  Sound  Navigation  Company  and 
the  Inland  Navigation  Company  were  for- 
eign corporations,  with  their  principal  place 
of  business  in  this  state  at  Seattle.  These 
corporations  were  engaged  in  operating 
steamboats  upon  the  waters  of  Puget 
Sound  within  the  state  of  Washington. 
They  were  the  owners  of  the  steamship 
Whatcom,  engaged  in  carrying  passengers 
and  freight  on  Puget  Sound  for  hire.  On 
or  about  the  date  mentioned  one  Frank 
Jarvis  was  in  the  employ  of  the  companies 
mentioned,  working  upon  the  steamship 
Whatcom  as  an  oiler.  While  engaged  in 
this  occupation,  Jarvis  sustained  an  injury 
which  he  claims  was  due  to  the  negligence 
of  the  companies  mentioned.  After  sus- 
taining this  injury,  he  presented  a  claim 
to  the  Industrial  Insurance  Commission. 
This  claim  was  rejected  by  the  Commission, 
for  the  reason  that  it  had  no  jurisdiction 
over  the  navigation  companies  mentioned. 
The  navigation  companies  had  never  paid 
any  premiums  to  the  Industrial  Insiirance 
Commission,  and  no  demand  had  been  made 
upon  the  companies  for  premiums  under  the 
compensation  act. 

Thereafter  Jarvis  instituted  an  action  at 
common  law  in  the  superior  court  for  King 
county,  claiming  damages  by  reason  of  the 
injury.  This  action  was  afterwards  re- 
moved to  the  Federal  court  upon  the  ground 
of  diverse  citizenship.  The  United  States 
district  court  for  the  state  of  Washington, 
western  division,  sitting  at  Seattle,  granted 
a  motion  for  judgment  in  favor  of  the  de- 
fendants, the  corporations  above  mentioned. 
The  reason  for  entering  this  judgment  was 
because  no  demand  had  been  made  upon  the 
navigation  companies  by  the  Industrial  In- 
surance Commission  for  the  state  of  Wash- 
ington for  the  percentage  of  their  pay  rolls, 
as  specified  in  the  industrial  act.  As  al- 
ready stated,  the  present  proceeding  was 
instituted  to  compel  the  Industrial  Insur- 
ance Commission  to  make  a  demand  for  such 
premiums.  The  case  presents  the  question 


448 


WORKMEN'S  COMPENSATION. 


whether  a  seaman  employed  upon  a  boat 
operating  upon  Puget  Sound,  and  engaged 
in  intrastate  commerce,  is  covered  by  the 
provisions  of  the  industrial  insurance  or 
workmen's  compensation  act.  If  such  em- 
ployees are  covered  by  the  act,  the  writ  in 
this  case  will  be  granted;  if  they  are  not, 
it  will  be  denied. 

The  first  section  of  the  act,  which  is  in  a 
sense  a  preamble,  after  stating  that  the 
common-law  system  covering  the  remedy 
of  workmen  against  employers  for  injuries 
received  in  hazardous  work  is  inconsistent 
with  modern  industrial  conditions,  that  in 
practice  it  proves  to  be  economically  un- 
wise and  unfair,  that  its  administration 
has  produced  the  result  that  little  of  the 
cost  to  the  employer  has  reached  the  work- 
man, that  the  remedy  of  the  workmen  has 
been  uncertain,  slow,  and  inadequate,  that 
injuries  in  such  work  have  become  frequent 
and  inevitable,  that  the  welfare  of  the  state 
depends  upon  its  industries,  and  upon  the 
welfare  of  its  wage  worker,  provides  that 
all  phases  of  the  common-law  system  are 
withdrawn  from  private  controversy,  and 
sure  and  certain  "relief  for  workmen  in- 
jured in  extrahazardous  work,  and  their 
families  and  dependents,  is  hereby  provided, 
regardless  of  questions  of  fault  and  to  the 
exclusion  of  every  other  remedy,  proceeding 
or  compensation,  except  as  otherwise  pro- 
vided in  this  act;  and  to  that  end  all  civil 
actions  and  civil  causes  of  action  for  such 
personal  injuries  and  all  jurisdiction  of 
the  courts  of  the  state  over  such  causes  are 
hereby  abolished,  except  as  in  this  act  pro- 
vided." 

It  should  be  noted  that  in  this  section 
of  the  act  it  is  provided  that  the  method 
of  compensation  therein  provided  for  shall 
be  to  the  exclusion  of  every  other  remedy, 
and  that  all  civil  actions  and  civil  causes  of 
action  for  personal  injuries,  and  all  juris- 
diction of  the  courts  of  the  state  over  such 
causes,  are  abolished.  Section  4  of  the  act 
contains  a  schedule  in  accordance  with 
which  the  employer  must  pay  the  percent- 
age of  his  pay  roll  there  set  out.  In  this 
schedule,  under  the  head  of  "operation," 
will  be  found:  "Steamboats,  tugs,  ferries, 
.030."  In  the  same  section  of  the  act  the 
industries  are  classified  which  are  required 
to  make  the  payments  as  specified  in  the 
schedule.  In  class  20  are  found,  "Steam- 
boats, tugs,  ferries." 

Prior  to  the  passage  of  this  act,  a  sea- 
man injured  while  employed  upon  a  boat 
operating  upon  Puget  Sound  had  the  choice 
of  two  remedies:  He  could  either  seek  re- 
L.R.A.1916A. 


lief  in  admiralty  in  the  Federal  court,  or 
pursue  a  common-law  action  in  the  state 
court.  By  article  3,  §  2,  of  the  Federal 
Constitution,  the  judicial  power  of  the 
United  States  is  extended  to  "all  cases  of 
admiralty  and  maritime  jurisdiction."  This 
grant  of  admiralty  jurisdiction  by  the  Con- 
stitution to  the  Federal  courts  was  followed 
by  the  judiciary  act  of  1789  (U.  S.  Rev. 
Stat.  §  563 )  :  "...  Saving  to  suitors 
in  all  cases  the  right  of  a  common-law  reme- 
dy where  the  common  law  is  competent  to 
give  it." 

In  The  Hamilton  (Old  Dominion  S.  S. 
Co.  v.  Gilmore)  207  U.  S.  398,  52  L.  ed. 
264,  28  Sup.  Ct.  Rep.  133,  construing  this 
statute,  it  was  said  that  it  "leaves  open 
the  common-law  jurisdiction  of  the  state 
courts  over  torts  committed  at  sea."  The 
Constitution  of  the  United  States,  in  ex- 
tending the  judicial  power  to  all  cases  of 
admiralty  and  maritime  jurisdiction,  there- 
by adopted  the  general  system  of  maritime 
law  which  was  familiar  to  lawyers  and 
statesmen  of  the  country  when  the  Consti- 
tution was  adopted.  In  The  Lottawanna 
(Rodd  v.  Heartt)  21  Wall.  558,  22  L.  ed. 
654,  it  was  said:  "That  we  have  a  mari- 
time law  of  our  own,  operative  throughout 
the  United  States,  cannot  be  doubted.  The 
general  system  of  maritime  law,  which  was 
familiar  to  the  lawyers  and  statesmen  of 
the  country  when  the  Constitution  was 
adopted,  was  most  certainly  intended  and 
referred  to  when  it  was  declared  in  that 
instrument  that  the  judicial  power  of  /the 
United  States  shall  extend  'to  all  cases  of 
j  admiralty  and  maritime  jurisdiction.'  " 

The  maritime  law  being  a  part  of  the  law 
of  the  United  States,  the  legislature  of  a 
state  has  no  power  to  modify  or  abrogate 
it.  Workman  v.  New  York,  179  U.  S.  552, 
45  L.  ed.  314,  21  Sup.  Ct.  Rep.  212.  It 
follows,  therefore,  that  the  legislature,  in 
passing  the  compensation  act,  could  not 
take  from  a  workman  any  right  which  he 
had  under  the  maritime  law  of  the  United 
States.  The  petitioner  here  still  has  the 
right  to  pursue  his  remedy  in  admiralty. 
Gathering  the  purposes  of  the  act  from  all 
its  provisions,  we  think  it  could  no.t  have 
been  the  legislative  intent  to  attempt  to 
]  encroach  upon  the  admiralty  jurisdiction  of 
the  Federal  court.  The  excerpt  from  the 
first  section  of  the  act,  above  quoted,  sub- 
stitutes the  provisions  of  the  act  for  every 
other  remedy,  proceeding,  or  compensation, 
except  as  therein  provided,  which  proviso 
is  not  here  material,  as  it  does  not  bear 
upon  the  question.  This  declaration  is  fol- 


STATE  EX  REL.  JARVIS  v.  DAGGETT. 


449 


lowed    by    the    clause    which    abolishes    all  |  §    4289     (Corap.    Stat.    1913,    §    8027),    the 
c-ivil  actions  and  civil  causes  of  action  for    limited   liability  provided  for   in   §   4283   is 


personal  injuries,  and  all  jurisdiction  of 
the  state  courts  over  such  causes.  It  seems 
to  be  the  purpose  of  the  act  to  give  the  re- 
lief therein  granted  where  the  legislature 
had  the  power  to  abolish  every  other  rem- 
edy. If  companies  operating  boats  upon 


made  to  apply  to  owners  of  "all  sea-going 
vessels,  and  also  to  all  vessels  used  on 
lakes  or  rivers  or  in  inland  navigation,  in- 
cluding canal  boats,  barges,  and  lighters." 
The  limited  liability  thus  provided  for  by 
Congress  applies  to  cases  of  personal  in- 


Puget  Sound  are  within  the  act,  then  they  !  juries,  as  well  as  to  cases  of  loss  of  or  in- 


may  be  compelled  to  pay  the  percentage  of 
their  pay  rolls  specified,  and  yet  be  sub- 
ject to  a  right  of  action  in  admiralty; 
•while  other  persons  or  corporations  engaged 
in  a  hazardous  business  not  covered  by  ad- 
miralty law  would  be  completely  protected 
against  the  pursuit  of  any  other  remedy  or 
proceeding.  The  owner  of  a  steamboat,  if 
he  should  pay  the  percentage  of  his.  pay 
roll  specified,  and  his  injured  seamen  should 
pursue  their  remedy  in  admiralty,  would 
receive  no  protection  from  the  act,  and 
yet  would  be  subject  to  its  burdens.  If  the 
act  were  given  this  construction,  it  might 
well  be  doubted  whether  it  would  not  of- 
fend against  that  provision  of  the  14th 
Amendment  to  the  Constitution  of  the  Unit- 
ed States  which  provides  that  no  state  shall 
make  or  enforce  any  law  which  shall  "deny 
to  any  person  within  its  jurisdiction  the 
«qual  protection  of  the  laws." 

The  petitioner  seeks  to  apply  that  rule  of 
law  which  permits  the  state  to  legislate  upon 
matters  which  are  distinctly  local  in  char- 
acter, although  embraced  within  the  Fed- 
eral authority,  until  such  time  as  the  Fed- 
eral authority  may  be  exercised  by  act  of 
Congress.  Wilmington  Transp.  Co.  v.  Rail- 
road Commission,  236  U.  S.  151,  59  L.  ed. 
508,  P.U.R.1915A,  845,  35  Sup.  Ct.  Rep. 
276,  Feb.  1,  1915.  Relying  upon  this  rule, 
it  is  argued  that,  since  Congress  has  passed 
no  workmen's  compensation  act  which  cov- 
ers employees  on  board  ships,  the  indus- 
trial insurance  law  applies  until  such  time 
as  a  Federal  act  is  passed.  This  position 
cannot  be  sustained;  but,  in  considering  it, 
it  will  be  assumed  that,  if  the  workmen's 
compensation  act  by  its  terms  was  intended 
to  include  the  owners  of  and  the  employees 
upon  vessels,  the  law  covering  such  scope 
does  not  offend  against  the  provision  of  the 
14th  Amendment  to  the  Constitution  above 
referred  to. 

By  §  4283,  Rev.  Stat.  U.  S.  (Comp.  Stat. 
1913,  §  8021),  the  liability  of  the  owner  of 
any  vessel  for  damages  or  injury  which 
occur  without  the  privity  or  knowledge  of 
auch  owner  is  limited  to  "the  amount  or 
value  of  the  interest  of  such  owner  in  such 
vessel  and  her  freight  then  pending."  By 
L.R.A.1916A.  29 


jury  to  property.  In  Butler  v.  Boston  & 
S.  S.  S.  Co.  130  U.  S.  527,  32  L.  ed.  1017, 
9  Sup.  Ct.  Rep.  612,  speaking  upon  this 
question,  it  was  said:  "We  think  that  the 
law  of  limited  liability  applies  to  cases  of 
personal  injury  and  death,  as  well  as  to 
cases  of  loss  of  or  injury  to  property." 

In  Craig  v.  Continental  Ins.  Co.  141  U. 
S.  638,  35  L.  ed.  886,  12  Sup.  Ct.  Rep.  97, 
construing  "privity  or  knowledge,"  as  used 
in  §  4283,  it  was  •  held  that,  in  order  to 
make  the  owner  of  a  vessel  liable  for  neg- 
ligence, "it  must  appear  that  the  owner  had 
directly  participated  in  the  negligence." 
There  is  no  claim  here  that  the  owners  of 
the  vessel  Whatcom  directly  participated 
in  the  alleged  negligence  which  caused  the 
injury  to  the  petitioner.  It  will  thus  be 
seen  that  §  4283  of  the  Federal  statutes 
limits  the  liability  of  the  owner  of  a  vessel. 
This  limited  liability  becomes  the  extent  of 
recovery.  Beyond  the  liability  as  limited 
by  the  statute,  there  can  be  no  recovery. 
The  workmen's  compensation  act  limits  the 
amount  for  which  an  employer  may  be- 
come liable  as  specified  in  the  act.  The  Con- 
gress of  the  United  States,  having  passed  a 
law  which  limits  or  measures  the  extent 
of  the  liability  of  the  owner  of  a  vessel  to 
a  workman  who  has  sustained  an  injury, 
the  legislature  would  not  have  the  power 
to  fix  another  and  different  standard  or 
measure.  In  Sinnot  v.  Davenport,  22  How. 
227,  16  L.  ed.  243,  it  was  said:  "The  whole 
commercial  marine  of  the  country  is  placed 
by  the  Constitution  under  the  regulation  of 
Congress,  and  all  laws  passed  by  that  body 
in  the  regulation  of  navigation  and  trade, 
whether  foreign  or  coastwise,  is  therefore 
but  the  exercise  of  an  undisputed  power. 
When,  therefore,  an  act  of  the  legislature 
of  a  state  prescripes  a  regulation  of  the 
subject  repugnant  to  and  inconsistent  with 
the  regulation  of  Congress,  the  state  law 
must  give  way ;  and  this,  without  regard 
to  the  source  of  power  whence  the  state 
legislature  derived  its  enactment." 

The  writ  will  be  denied. 

Morris,  Ch.  J.,  and  Fullerton,  Parker, 
and  Ellis,  JJ.,  concur. 


450 


WORKMEN'S  COMPENSATION. 


ILLINOIS  SUPREME  COURT. 

LAURA  STALEY,  Admrx.,  etc.,  of  Syl- 
vester C.  Staley,  Deceased,  Plff.  in  Cer- 
tiorari, 

v. 

ILLINOIS    CENTRAL    RAILROAD    COM- 
PANY. 

(268  111.  356,  309  N.  E.  342.) 

Master  and  servant  —  accidental  injury 
to  interstate  employee  —  power  of 
state  to  provide  compensation. 

The  Federal  employers'  liability  act  cov- 
ers the  entire  field  of  compensation  for  in- 
jury to  employees  engaged  in  interstate 
transportation  by  rail,  and  a  state  com- 
pensation act  is  therefore  not  applicable  in 
case  of  injury  to  such  employee  without 
negligence  on  the  part  of  the  employer,  al- 
though no  provision  may  be  made  for  such 
cases  by  the  Federal  act.' 
For  other  cases,  see  Commerce,  II.  c,  in 

Dig.  1-52  N.  8. 

(June  24,  1915.) 

/^ERTIORARI  to  the  Appellate  Court, 
\J  Fourth  District,  to  review  a  judgment 
modifying  a  judgment  of  the  Circuit  Court 
for  Marion  County,  in  plaintiff's  favor  in  a 
proceeding  under  the  workmen's  compensa- 
tion act,  to  recover  compensation  for  the 
death  of  her  husband.  Reversed. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Frank  F.  Noleman,  and  June 
C.  Smith,  for  plaintiff  in  certiorari : 

The  compensation  act  is  a  police  regula- 
tion, and  as  such  is  one  of  the  powers  re- 
served to  the  state. 

Ritchie  v.  People,  155  111.  98,  29  L.R.A. 
79,  46  Am.  St.  Rep.  315,  40  N.  E.  454;  Booth 
v.  People,  186  111.  43,  50  L.R.A.  762,  78  Am. 
St.  Rep.  229,  57  N.  E.  798:  Lake  View  v 
Rose  Hill  Cemetery  Co.  70  111.  191,  22  Am. 
Rep.  71;  Wice  v. 'Chicago  &  N.  W.  R.  Co. 
193  111.  353,  56  L.R.A.  268,  61  N.  E.  1084: 
Culver  v.  Streator,  130  111.  238,  6  L.R.A. 
270,  22  N.  E.  810;  Cole  v.  Hall,  103  Til.  30: 
Reeves  v.  Corning,  51  Fed.  774;  State  v. 
Fitzpatrick,  16  R.  I.  54,  1  Inters.  Com.  Rep. 
713,  11  Atl.  767;  State  v.  Schlenker,  Hi.' 
Iowa,  642,  51  L.R.A.  347,  84  Am.  St.  Rep 
360,  84  N.  W.  698;  Minneapolis  &  St.  L.  R. 
Co.  v.  Beckwith,  129  U.  S.  29,  32  L.  ed.  586; 
9  Sup.  Ct.  Rep.  207;  Cantini  v.  Tillman,  54 
Fed.  969;  People  v.  Rosenberg,  138  N.  Y. 
415,  34  N.  E.  285. 

The  act  is  not  one  regulating  commerce, 


Note.  —  As  to  the  application  and  effect 
of  workmen's  compensation  acts  generally, 
see  annotation,  ante,  23. 

As  to   the   limitation   of   the   application 
of  the  state  compensation  statutes  by  Fed- 
eral laws,  see  annotation,  post,  461. 
L.R.A. 1916A. 


within  the  meaning  of  the  commerce  clause 
of  the  Federal  Constitution. 

Hooper  v.  California,  155  U.  S.  648,  39 
L.  ed.  297,  5  Inters.  Com.  Rep.  610,  15  Sup. 
Ct.  Rep.  207;  Culver  v.  Streator,  130  111. 
238,  6  L.R.A.  270,  22  N.  E.  810;  Lake  Shore 
&  M.  S.  R.  Co.  v.  Ohio,  173  U.  S.  285,  43  L. 
ed.  702,  19  Sup.  Ct.  Rep.  465;  Hennington 
v.  Georgia,  163  U.  S.  299,  41  L.  ed.  166,  16- 
Sup.  Ct.  Rep.  3086;  Gibbons  v.  Ogdtm,  9> 
Wheat.  9,  6  L.  ed.  25;  Smith  v.  Alabama, 
124  U.  S.  465,  31  L.  ed.  508,  1  Inters.  Com, 
Rep.  804,  8  Sup.  Ct.  Rep.  564;  Sherlock  v. 
Ailing,  93  U.  S.  99,  23  L.  ed.  819;  Erie  R, 
Co.  v.  Williams,  233  U.  S.  685,  58  L.  ed. 
1155,  51  L.R.A.(N.S.)  1097,  34  Sup.  Ct.  Rep. 
761;  St.  Louis  I.  M.  &  S.  R.  Co.  v.  Paul,. 
173  U.  S.  404,  43  L.  ed.  746,  19  Sup.  Ct, 
Rep.  439;  Missouri  K.  &  T.  R.  Co.  v.  Cade,. 
233  U.  S.  642,  58  L.  ed.  1335,  34  Sup.  Ct. 
Rep.  678;  Missouri,  K.  &  T.  R.  Co.  v.  Har- 
ris, 234  U.  S.  412,  58  L.  ed.  3377,  L.R.A. 
3935E,  942,  34  Sup.  Ct.  Rep.  790;  Atlantic- 
Coast  Line  R.  Co.  v.  Georgia,  234  U.  S.  280, 
58  L.  ed.  3312,  34  Sup.  Ct.  Rep.  829;  Second 
Employers'  Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  56- 
L.  ed.  327,  38  L.R.A.  (N.S.)  44.  32  Sup. 
Ct.  Rep.  369,  3  N.  C.  C.  A.  875. 

Until  such  time  as  Congress  enacts  legis- 
lation upon  a  subject  within  its  power,  each 
state  is  free  to  legislate  upon  that  subject. 

Southern  P.  Co.  v.  Campbell,  230  U  S. 
537,  57  L.  ed.  3610,  33  Sup.  Ct.  Rep.  3027; 
Erb  v.  Morasch,  177  U.  S.  584,  44  L.  ed.  S97r 
20  Sup.  Ct.  Rep.  819;  Austin  v.  Tennessee, 
179  U.  S.  343,  45  L.  ed.  224,  23  Sup.  Ct. 
Rep.  132;  Sherlock  v.  Ailing,  93  U.  S.  99, 
23  L.  ed.  819;  Adams  Exp.  Co.  v.  Croninger, 
226  U.  S.  493,  57  L.  ed.  314,  44  L.R.A. (N.S.) 
257,  33  Sup.  Ct.  Rep.  348;  Minnesota  Rate 
Cases  ( Simpson  v.  Shepard ) ,  230  U.  S.  352, 
57  L.  ed.  1513,  48  L.R.A.  (N.S.)  1151,  33  Sup.. 
Ct.  Rep.  729;  Allen  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.  230  U.  S.  553,  57  L.  ed.  3625,  33  Sup. 
Ct.  Rep.  3030;  Missouri  Rate  Cases  (Knott 
v.  Chicago,  B.  &  Q.  R.  Co.)  230  U.  S.  474, 
57  L.  ed7  3571,  33  Sup.  Ct.  Rep.  975:  Erie 
R.  Co.  v.  Williams,  233  U.  S.  685,  58  L.  ed. 
1355,  51  L.R.A.(N.S.)  3097,  34  Sup.  Ct. 
Rep.  761 ;  Missouri,  K.  &  T.  R.  Co.  v.  Cade,. 

233  U.  S.  642,  58  L.  ed.  1135.  34  Sup.  Ct. 
Rep.  678;  Missouri,  K.  &  T.  R.  Co.  v.  Har- 
ris, 234  U.   S.  412,  58  L.  ed.   3377,  L.R.A. 
1935E,  942,  34  Sup.  Ct.  Rep   790;  Port  Rich- 
mond &  B.  P.  Ferry  Co.  v.  Hudson  County, 

234  U.  S.  317,  58  L.  ed.  1330,  34  Sup.  Ct. 
l\ep.    821 ;    Atlantic   Coast   Line    R.    Co.   v. 
Georgia,  234  U.  S.  280,  58  L.  ed.   3332,  34- 
Sup.   Ct.   Rep.   829;    Reid   v.   Colorado,    187 
U.  S.  137,  348,  47  L.  ed.  108,  114,  23  Sup.. 
Ct.  Rep.  92,  12  Am.  Crim.  Rep.  506. 

The  procedure  followed  in  this  case  was- 


STALEY  v.  ILLINOIS  CENTRAL  R.  CO. 


451 


suitable  and  proper,  and  the  only  procedure 
contemplated  by  the  compensation  act. 

Moore  v.  Tierney,  100  111.  207 ;  Bruegge- 
mann  v.  Young,  208  111.  181,  70  N.  E.  293; 
Parmelee  v.  Price,  208  111.  544,  70  N.  E.  725; 
Turnes  v.  Brenckle,  249  111.  394,  94  N.  E. 
495 ;  People  ex  rel.  Smith  v.  Rodenberg,  254 
111.  386,  98  N.  E.  764;  Standidge  v.  Chicago 
R.  Co.  254  111.  524,  40  L.R.A.(N.S.)  529, 
98  N.  E.  963,  Ann.  Cas.  1913C,  65;  Ward 
v.  Farwell,  97  111.  593;  Holnback  v.  Wilson, 
159  111.  148,  42  N.  E.  169;  People  use  of 
Peoria  County  v.  Hill,  163  111.  186,  36 
L.R.A.  634,  46  N.  E.  796;  Pittsburg,  C.  C.  & 
St.  L.  R.  Co.  v.  Chicago,  242  111.  178,  44 
L.R.A.(N.S.)  358,  134  Am.  St.  Rep.  316,  89 
N.  E.  1022. 

Messrs.  Blcwett  Lee  and  H.  S.  Horton, 
with  Messrs.  W.  W.  Barr,  C.  E.  Feirich, 
and  Kagy  &  Vandervort,  for  defendant  in 
certiorari. 

Carter,  J.,  delivered  the  opinion  of  the 
court : 

This  a  proceeding  under  the  workmen's 
compensation  law  of  this  state  (Laws  of 
1911,  p.  315),  commenced  by  petition  filed 
by  plaintiff  in  error  in  the  circuit  court  of 
Marion  county  for  compensation  for  the 
death  of  her  husband,  who  was  run  over  and 
killed  by  one  of  defendant  in  error's  switch 
engines  in  its  yards  near  Centralia,  Illinois. 
The  defendant  in  error  was  served  with  no- 
tice, and,  after  certain  motions  had  been 
made,  filed  an  amended  answer,  wherein  it 
set  up  that  the  cause  stated  in  the  petition 
was  not  comprehended  within  the  meaning 
of  said  workmen's  compensation  act,  but 
was  within  the  scope  and  meaning  of  the 
Federal  employers'  liability  act.  The  trial 
court  found  in  favor  of  plaintiff  in  error, 
and  entered  judgment  in  her  favor  for  $3- 
500,  payable  in  a  lump  sum.  From  this 
judgment  defendant  in  error  appealed  to  the 
appellate  court.  That  court  affirmed  the 
judgment  of  the  trial  court,  except  that  it 
was  held  that  under  the  workmen's  compen- 
sation act  it  should  not  be  for  the  full 
amount  of  $3,500,  but  should  have  been  com- 
muted at  its  present  value.  Plaintiff  in  er- 
ror thereupon  brought  the  cause  to  this 
court  by  petition  for  certiorari. 

Several  questions  are  raised  and  argued 
in  the  briefs.  It  is  first  necessary  to  con- 
sider and  decide  the  question  whether  there 
can  be  a  recovery  in  this  cause  under  the 
Illinois  workmen's  compensation  act,  so 
called,  or  whether  the  cause  is  comprehend- 
ed within  the  meaning  and  scope  of  the 
Federal  employers'  liability  act  and  recovery 
can  only  be  had  under  this  last-named  law. 
If  the  position  of  defendant  in  error  on  this 
point,  raised  by  filing  cross  errors  in  this 
L.R.A.1916A. 


court,   is  sustained,   it  will  be  unnecessary 
to  consider   the   other   questions   involved. 

Counsel  for  defendant  in  error  insist  ire 
their  amended  answer  that  plaintiff  in  er- 
ror's intestate  was  engaged,  at  tin;  time  ot 
his  fatal  injury,  in  interstate  commerce, 
and  that  therefore  the  Federal  employers' 
liability  act  controls,  superseding  all  state 
laws  on  the  subject.  The  evidence  showed! 
that  the  deceased  was  working,  on  the  day 
of  the  injury,  March  28,  1913,  in  defendant 
in  error's  switch  or  terminal  yards  near 
Centralia,  Illinois,  as  a  machinist;  his  duty 
being  to  repair  the  switch  engines  in  the 
yards.  He  was  sent  by  his  superior  officer 
to  repair  the  whistle  rod  on  an  engine  en- 
gaged in  switching  and  handling  interstate 
commerce.  As  he  went  down  a  switch  track, 
he  saw  the  engine  coming  toward  him,  and 
stepped  out  of  its  way  onto  another  track 
immediately  in  front  of  another  moving  en- 
gine, by  which  he  was  knocked  down  and 
killed  instantly.  The  last-named  engine 
was  also  engaged  in  switching  all  classes  of 
freight,  interstate  as  well  as  intrastate. 
Counsel  for  defendant  in  error  contend,  and 
counsel  for  plaintiff  in  error  concede,  that 
the  deceased  was,  at  the  time  of  the  acci- 
dent, engaged  in  interstate  commerce.  On 
the  evidence  as  presented  in  the  record  be- 
fore us  no  other  conclusion  can  be  readied, 
under  the  holdings  of  the  United  States. 
Supreme  Court.  Pedersen  v.  Delaware,  L.. 
&  W.  R.  Co.  229  U.  S.  146,  57  L.  ed.  1125,. 
33  Sup.  Ct.  Rep.  648,  Ann.  Cas.  1914C,  153,. 
3  N.  C.  C.  A.  779;  St.  Louis,  S.  F.  &  T.  R. 
Co.  v.  Seale,  229  U.  S.  156,  57  L.  ed.  11 29", 
33  Sup.  Ct.  Rep.  651,  Ann.  Cas.  1914C,  156; 
Missouri,  K.  &  T.  R.  Co.  v.  United  States, 
231  U.  S.  112,  58  L.  ed.  144,  34  Sup.  Ct.  Rep. 
26.  The  Federal  employers'  liability  act 
will  therefore  control  if  it  covers  the  identi- 
cal subject-matter  or  the  same  field  as  that, 
covered  by  the  Illinois  workmen's  compensar 
tion  act. 

Counsel  argue  at  length  as  to  whether 
the  workmen's  compensation  act  imposes  a 
direct  burden  upon  interstate  commerce.  In 
our  judgment  that  is  not  the  decisive  ques- 
tion here.  The  general  principles  governing 
the  exercise  of  Federal  authority  when  in- 
terstate commerce  is  affected  have  been  firm- 
ly established  by  the  decisions  of  the  United 
States  Supreme  Court.  The  power  of  Con- 
gress to  regulate  commerce  among  the  sev- 
eral states  is  supreme  and  plenary  under  the 
Constitution.  The  reservation  to  the  states 
to  legislate  on  questions  affecting  interstate 
commerce  is  only  of  that  authority  which  is 
consistent  with  and  not  opposed  to  the  grant 
of  Congress,  which  extends  to  every  instru- 
mentality or  agency  by  which  interstate 
commerce  may  be  carried  on.  The  decisions 
hold  that  with  respect  to  certain  subjects. 


452 


WORKMEN'S  COMPENSATION. 


embraced  within  the  grant  of  the  Constitu- 
tion which  are  of  such  a  nature  as  to  de- 
mand that,  if  regulated  at  all,  their  regu- 
lation should  be  prescribed  by  a  single 
authority,  the  power  of  Congress  is  exclu- 
sive, while  in  other  matters  admitting  of 
diversity  of  treatment,  according  to  the 
special  requirements  of  local  conditions, 
"the  states  may  act  within  their  respective 
jurisdictions  until  Congress  sees  fit  to  act; 
and,  when  Congress  does  act,  the  exercise 
of  its  authority  overrides  all  conflicting 
state  legislation."  Minnesota  Rate  Cases 
(Simpson  v.  Shepard)  230  U.  S.  352,  57 
L.  ed.  1511,  48  L.R.A.(N.S.)  1151,  33  Sup. 
Ct.  Rep.  729.  The  doctrine  that  the  states 
cannot,  under  any  guise,  impose  direct  bur- 
dens upon  interstate  commerce,  forms  the 
basis  of  the  foregoing  classification.  With- 
in certain  limitations  there  remains  to  the 
states,  until  Congress  acts,  a  wide  range  for 
the  exercise  of  the  power  appropriate  to  ter- 
ritorial jurisdiction  although  interstate  com- 
merce may  be  affected.  Included  within 
these  limitations  are  those  matters  of  a  lo- 
cal nature  as  to  which  it  is  impossible  to 
derive  from  the  constitutional  provisions  an 
intention  that  they  should  go  uncontrolled 
pending  Federal  legislation.  It  is  therefore 
"competent  for  a  state  to  govern  its  internal 
commerce,  to  provide  local  improvements,  to 
create  and  regulate  local  facilities,  to  adopt 
protective  measures  of  a  reasonable  charac- 
ter in  the  interest  of  the  health,  safety, 
morals,  and  welfare  of  its  people,  although 
interstate  commerce  may  incidentally  or  in- 
directly be  involved."  230  U.  S.  on  page  402. 
It  is  unnecessary  for  us  to  refer  to  or  discuss 
the  various  decisions  touching  this  question. 
Many  of  them  are  referred  to  and  considered 
and  these  general  doctrines  discussed  at 
length  in  the  case  from  which  we  have  just 
quoted.  The  question  in  the  case  before  us 
is  not  whether  the  deceased  was  engaged  in 
interstate  commerce  at  the  time  of  the  ac- 
cident, for  that  is  conceded.  Neither  is  it 
necessarily  the  question  whether  the  work- 
men's compensation  act  affected  directly 
and  substantially  an  instrument  of  com- 
merce. The  argument  of  counsel  for  plain- 
tiff in  error  that  the  workmen's  compen- 
sation act  affects  the  employee  "solely  as  a 
member  of  society,  and  not  as  an  instrument 
of  society,"  and  is  therefore  within  the 
police  power  of  the  state,  cannot  be  sus- 
tained if  Congress  has  by  legislation  acted 
on  the  "subject-matter"  or  the  "particular 
subject"  or  in  the  "same  field"  (as  those 
terms  are  understood  in  the  decisions)  as 
that  covered  by  the  Illinois  workmen's  com- 
pensation act.  Counsel  in  their  briefs  state 
that  the  particular  question  here  presented 
has  never  been  considered  or  decided  by  any 
court,  either  state  or  Federal.  We  have 
L.R.A.1916A. 


been  unable  to  find  any  decision  of  a  court 
of  final  review  where  such  question  has  been 
under  consideration.  But  see,  as  bearing  on 
this  question  in  nisi  prius  and  intermediate 
courts  of  review,  the  following:  Rounsaville 
v.  Central  R.  Co.  37  N.  J.  L.  J.  295;  Smith 
v.  Industrial  Acci.  Commission,  26  Cal.  App. 
560,  147  Pac.  600;  Winfield  v.  New  York 
C.  &  H.  R.  R.  Co.  168  App.  Div.  351,  153  N. 
Y.  Supp.  499.  We  have  therefore  deemed  it 
proper  to  discuss  at  some  length  the  au- 
thorities that  bear,  directly  or  indirectly, 
on  the  point  to  be  decided. 

In  considering  the  question  whether  Con- 
gress lias  acted  upon  the  same  matter  as 
that  covered  by  a  state  statute,  the  Federal 
courts  have  used  different  terms  in  different 
decisions.  In  Smith  v.  Alabama,  124  U  S. 
465,  31  L.  ed.  508,  1  Inters.  Com.  Rep.  804, 
8  Sup.  Ct.  Rep.  564,  the  words  "subject-mat- 
ter" or  "subject  contained"  in  the  state  stat- 
ute were  employed. 

In  Nashville,  C.  &  St.  L.  R.  Co.  v.  Ala- 
bama, 128  U.  S.  96,  99,  32  L.  ed.  352,  353,  2 
Inters.  Com.  Rep.  238,  9  Sup.  Ct,  Rep.  28, 
29,  the  court  said  (p.  101)  :  "It  is  con- 
ceded that  the  power  of  Congress  to  regu- 
late interstate  commerce  is  plenary;  that, 
as  incident  to  it,  Congress  may  legislate  as 
to  the  qualifications,  duties,  and  liabilities 
of  employees  and  others  on  railway  trains 
.  .  .  in  that  commerce;  and  that  such 
legislation  will  supersede  any  state  action 
on  the  subject." 

In  Leisy  v.  Hardin,  135  U.  S.  100,  34  L. 
ed.  128,  3  Inters.  Com.  Rep.  36,  10  Sup.  Ct. 
Rep.  681,  in  considering  this  question  the 
court  used  the  term  "particular  subjects." 

In  Gulf,  C.  &  S.  F.  R.  Co.  v.  Hefley,  158 
U.  S.  98,  39  L.  ed.  910,  911,  15  Sup.  Ct.  Rep. 
802,  803,  the  opinion  states  (p.  102)  : 
"Clearly  the  state  and  the  national  acts  re- 
late to  the  same  subject-matter  and  pre- 
scribe different  rules.  ...  In  such  case 
one  must  yield,  and  that  one  is  the  state 
law." 

In  Chicago,  M.  &  St.  P.  R.  Co.  v.  Solan, 
169  U.  S.  133,  42  L.  ed.  688,  692,  18  Sup. 
Ct.  Rep..  289,  291,  the  court,  in  discussing 
the  validity  of  state  regulations  as  to  the  lia- 
bilities of  state  carriers  of  passengers,  said 
(p.  137)  :  "They  are  not,  in  themselves, 
regulations  of  interstate  commerce,  although 
they  control,  in  some  degree,  the  contract 
and  the  liability  of  those  engaged  in  such 
commerce.  So  long  as  Congress  has  not 
legislated  upon  the  particular  subject,  they 
are  rather  to  be  regarded  as  legislation  in 
aid  of  such  commerce,  and  as  a  rightful  exer- 
cise of  the  police  power  of  the  state  to  reg- 
ulate the  relative  rights  and  duties  of  all 
persons  and  corporations  within  its  limits." 

This  definition  or  rule  as  laid  down  in 
this  last  case  was  quoted  with  approval  in 


STALEY  v.  ILLINOIS  CENTRAL  R.  CO. 


453 


Adams  Exp.  Co.  v.  Croninger,  226  U.  S.  491, 
57  L.  ed.  314,  44  L.R.A.(N.S.)  257,  33  Sup. 
Ct.  Rep.  148. 

In  Missouri,  K.  &  T.  R.  Co.  v.  Haber,  169 
U.  S.  613,  42  L.  ed.  878,  883,  18  Sup.  Ct. 
Rep.  488,  493,  in  considering  the  Federal 
statutes  bearing  on  the  interstate  shipment 
of  cattle,  and  comparing  those  statutes  with 
statutes  of  Kansas  with  reference  to  bring- 
ing into  that  state  cattle  .  liable  to  com- 
municate certain  diseases,  the  court  said 
(p.  627)  :  "Although  the  power  of  Congress 
to  regulate  commerce  among  the  states,  and 
the  power  of  the  states  to  regulate  their 
purely  domestic  affairs,  are  distinct  powers, 
which,  in  their  application,  may  at  times 
bear  upon  the  same  subject,  no  collision  that 
would  disturb  the  harmony  of  the  national 
and  state  governments  or  produce  any  con- 
flict between  the  two  governments  in  the 
exercise  of  their  respective  powers  need 
occur,  unless  the  national  government,  act- 
ing within  the  limits  of  its  constitutional 
authority,  takes  under  its  immediate  con- 
trol and  exclusive  supervision  the  entire  sub- 
ject to  which  the  state  legislation  may  re- 
fer." 

And  it  was  there  held  that  the  Federal 
and  state  statutes  were  not  in  conflict. 

Somewhat  similar  statutes  were  under 
consideration  in  Reid  v.  Colorado,  187  U.  S. 
137,  47  L.  ed.  108,  113,  23  Sup.  Ct.  Rep.  92, 
95,  12  Am.  Crim.  Rep.  506.  The  opinion 
states  (p.  146)  :  "When  the  entire  subject 
of  the  transportation  of  live  stock  from  one 
state  to  another  is  taken  under  direct 
national  supervision,  and  a  system  devised 
by  which  diseased  stock  may  be  excluded 
from  interstate  commerce,  all  local  or  state 
regulations  in  respect  of  such  matters,  and 
covering  the  same  ground,  will  cease  to  have 
any  force,  whether  formally  abrogated  or 
not;  and  such  rules  and  regulations  as  Con- 
gress may  lawfully  prescribe  or  authorize 
will  alone  control.  [Citing  authorities.] 
The  power  which  the  states  might  thus  exer- 
cise may  in  this  way  be  suspended  until 
national  control  is  abandoned  and  the  sub- 
ject be  thereby  left  under  the  police  power 
of  the  states.  But  the  difficulty  with  the 
defendant's  case  is  that  Congress  has  not 
by  any  statute  covered  the  whole  subject  of 
the  transportation  of  live  stock  among  the 
several  states,  and,  except  in  certain  par- 
ticulars not  involving  the  present  issue,  has 
left  a  wide  field  for  the  exercise  by  the 
states  of  their  power,  by -appropriate  regu- 
lations, to  protect  their  domestic  animals 
against  contagious,  infectious,  and  com- 
municable diseases." 

In  Northern  P.  R.  Co.  v.  Washington,  222 
U.  S.  370,  56  L.  ed.  237,  32  Sup.  Ct.  Rep. 
160,  the  court  quoted  with  approval  the 
statement  in  the  opinion  of  a  state  court 
L.R.A.1916A. 


that  if  Congress  has  legislated,  "its  act 
supersedes  any  and  all  state  legislation  on 
j  that  particular  subject ; "  and  further  stated 
that  the  power  of  the  state  court  to  act  only 
existed  from  the  silence  of  Congress  on  the 
subject,  and  continued  (p.  378)  :  "This 
being  the  conceded  premise  upon  which  alone 
the  state  law  could  have  been  made  ap- 
plicable, it  results  that  as  the -enactment  by 
Congress  of  the  law  in  question  was  an  as- 
sertion of  its  power,  by  the  fact  alone  of 
such  manifestation,  that  subject  was  at  once 
removed  from  the  sphere  of  the  operation  of 
the  authority  of  the  state." 

In  this  case  it  was  held  that  congressional 
legislation  as  to  hours  of  service  so  com- 
pletely covered  the  field  as  to  prevent  state 
legislation  on  that  subject. 

In  Southern  R.  Co.  v.  Reid,  222  U.  S.  424, 
56  L.  ed.  257,  260,  32  Sup.  Ct.  Rep.  140,  143, 
the  court,  in  discussing  the  power  of  the 
states  to  make  rates,  said  with  reference  to 
a  state  statute  (p.  437)  :  "Does  it,  as  con- 
tended by  the  plaintiff  in  error,  take  con- 
trol of  the  subject-matter  and  impose  af- 
firmative duties  upon  the  carriers  which  the 
state  cannot  even  supplement?  In  other 
words,  has  Congress  taken  possession  of  the 
field?" 

In  Savage  v.  Jones,  225.  U.  S.  501,  56  L. 
ed.  1182,  1194,  32  Sup.  Ct.  Rep.  715,  726, 
Federal  and  state  statutes  with  reference  to 
the  sale  and  shipment  of  food  for  domestic 
animals  were  considered.  It  is  stated  in  the 
opinion  (p.  533)  :  "When  the  question  is 
whether  a  Federal  act  overrides  a  state  law, 
the  entire  scheme  of  the  statute  must,  of 
course,  be  considered,  and  that  which  needs 
must  be  implied  is  of  no  less  force  than  that 
which  is  expressed.  If  the  purpose  of  the 
act  cannot  otherwise  be  accomplished, — if 
its  operation  within  its  chosen  field  else 
must  be  frustrated  and  its  provisions  be  re- 
fused their  natural  effect, — the  state  law 
must  yield  to  the  regulation  of  Congress 
within  the  sphere  of  its  delegated  power. 
[Citing  authorities.]  But  the  intent  to 
supersede  the  exercise  by  the  state  of  its 
police  power  as  to  matters  not  covered  by 
the  Federal  legislation  is  not  to  be  inferred 
from  the  mere  fact  that  Congress  has  seen 
fit  to  circumscribe  its  regulation  and  to 
occupy  a  limited  field.  In  other  words,  such 
intent  is  not  to  be  implied  unless  the  act  of 
Congress,  fairly  interpreted,  is  in  actual 
conflict  with  the  law  of  the  state." 

In  Hampton  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.  227  U.  S.  456,  57  L.  ed.  596,  33  Sup.  Ct. 
Rep.  263,  it  was  held  that  an  Arkansas  stat- 
ute imposing  a  penalty  for  failure  to  deliver 
cars  had  been  superseded  by  the  provisions 
of  the  Federal  act,  although  the  provisions 
of  the  two  acts  were  not  identical. 

In  Erie  R.  Co.  v.  New  York,  233  U.  S.  671, 


454 


WORKMEN'S  COMPENSATION. 


58  L.  ed.  1149,  1154,  52  L.R.A.(N.S.)  266, 
34  Sup.  Ct.  Rep.  756,  760,  Ann.  Gas.  1915D, 
138,  the  court,  in  discussing  the  power  of 
the  state  and  nation  to  regulate  the  hours  of 
employment  of  railroad  employees,  said  that 
where  there  is  a  conflict  the  state  legislation 
must  give  way;  that  when  Congress  acts  in 
such  a  way  as  to  nmnifest  its  purpose  to 
exercise  its  authority,  the  regulating  power 
of  the  state  ceases  to  exist ;  and  it  was  there 
held  that  the  two  acts  were  in  conflict,  and 
that  one  did  not  merely  supplement  the 
other;  the  opinion  saying  (p.  683)  :  "It  is 
not  that  there  may  be  division  of  the  field 
of  regulation,  but  an  exclusive  occupation  of 
it  when  Congress  manifests  a  purpose  to  en- 
ter it." 

In  Atlantic  Coast  Line  R.  Co.  v.  Georgia, 
234  U.  S.  280,  58  L.  ed.  1312,  1318,  34  Sup. 
Ct.  Rep.  829,  832,  the  court  sustained  a 
state  statute  requiring  locomotives  engaged 
in  interstate  commerce  to  be  equipped  with 
electric  headlights  of  a  certain  candle  power, 
as  a  police  regulation.  After  discussing  the 
authorities,  including  many  that  we  have 
already  cited  in  this  opinion,  and  also  con- 
sidering the  various  acts  of  Congress  bear- 
ing on  the  subject,  the  opinion  says  (p. 
293)  :  "It  is  manifest  that  none  of  these 
acts  provides  regulations  for  locomotive 
headlights.  .  .  .  The  most  that  can  be 
said  is  that  inquiries  have  been  made,  but 
that  Congress  has  not  yet  decided  to  estab- 
lish regulations,  either  directly  or  through 
its  subordinate  body,  as  to  the  appliance  in 
question.  The  intent  to  supersede  the  exer- 
cise of  the  state's  police  power  with  respect 
to  this  subject  cannot  be  inferred  from  the 
restricted  action  which  thus  far  has  been 
taken." 

In  Southern  R.  Co.  v.  Railroad  Commis- 
sion, 236  U.  S.  439,  59  L.  ed.  661,  665,  35 
Sup.  Ct.  Rep.  304,  305,  the  court  had  under 
consideration  an  Indiana  statute  requiring 
railway  companies  to  place  secure  grabirons 
and  handholds  on  the  ends  and  sides  of  cars 
engaged  in  interstate  commerce,  and  it  was 
held  that  until  Congress  had  entered  that 
field,  the  state  could  legislate  as  to  the 
equipment  of  cars  in  such  a  manner  as 
would  only  incidentally  affect,  without  bur- 
dening, interstate  commerce;  but  also  held 
that  Congress  had  entered  upon  that  field, 
and  therefore  superseded  existing  state  legis- 
lation on  the  same  subject,  saying  (p.  446)  : 
"Under  the  Constitution  the  nature  of  that 
power  is  such  that,  when  exercised,  it  is  ex- 
clusive, and  ipso  facto,  supersedes  existing 
state  legislation  on  the  same  subject.  Con- 
gress, of  course,  could  have  'circumscribed 
its  regulations'  so  as  to  occupy  a  limited 
field.  Savage  v.  Jones  and  Atlantic  Coast 
Line  R.  Co.  v.  Georgia,  supra.  But,  so  far 
as  it  did  legislate,  the  exclusive  effect  of  the 
L.R.A.T)16A. 


safety  appliance  act  did  not  relate  merely 
to  details  of  the  statute  and  the  penalties 
it  imposed,  but  extended  to  the  whole  sub- 
ject of  equipping  cars  with  appliances  in- 
tended for  the  protection  of  employees.  The 
states  thereafter  could  not  legislate  so  as  to 
require  greater  or  less  or  different  equip- 
ment, nor  could  they  punish  by  imposing 
greater  or  less  or  different  penalties,  for,  as 
said  in  Prigg  v.  Pennsylvania,  16  Pet.  539, 
617,  10  L.  ed.  1060,  1089:  'If  Congress  have 
a  constitutional  power  to  regulate  a  par- 
ticular subject,  and  they  do  actually  regu- 
late it  in  a  given  manner,  and  in  a  certain 
form,  it  cannot  be  that  the  state  legislatures 
have  a  right  to  interfere;  and,  as  it  were,  by 
way  of  complement  to  the  legislation  of  Con- 
gress, to  prescribe  additional  regulations, 
and  what  they  may  deem  auxiliary  pro- 
visions for  the  same  purpose.  In  such  a 
case,  the  legislation  of  Congress,  in  what  it 
does  prescribe,  manifestly  indicates  that  it 
does  not  intend  that  there  shall  be  any 
farther  legislation  to  act  upon  the  subject- 
matter.  Its  silence  as  to  what  it  does  not 
do  is  as  expressive  of  what  its  intention  is 
as  the  direct  provisions  made  by  it.  ... 
The  will  of  Congress  upon  the  whole  subject 
is  as  clearly  established  by  what  it  had  not 
declared,  as  by  what  it  has  expressed.' 
Without,  therefore,  discussing  the  many 
cases  sustaining  the  right  of  the  states  to 
legislate  on  subjects  which,  while  not 
burdening,  may  yet  incidentally  affect,  inter- 
state commerce,  it  is  sufficient  here  to  say 
that  Congress  has  so  far  occupied  the  field 
of  legislation  relating  to  the  equipment  of 
freight  cars  with  safety  appliances  as  to 
supersede  existing  and  prevent  further  legis- 
lation on  that  subject." 

What  is  the  "subject,"  "particular  sub- 
ject," "subject-matter,"  "field,"  "particular 
field,"  or  "chosen  field"  covered  by  the  Fed- 
eral employers'  liability  act?  That  act  was 
originally  passed  in  1908,  having  since  been 
amended  in  some  particulars  on  points  not 
at  issue  in  this  case.  The  title  and  the  prin- 
cipal sections  that  must  be  considered  read 
as  follows: 

An  Act  Relating  to  the  Liability  of  Common 
Carriers  by  Railroad  to  Their  Employees 
in  Certain  Cases. 

Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of 
America  in  Congress  assembled,  that  every 
common  carrier  by  railroad  while  engaging 
in  commerce  between  any  of  the  several 
states  or  territories,  or  between  any  of  the 
states  and  territories,  or  between  the 
District  of  Columbia  and  any  of  the  states 
or  territories,  or  between  the  District  of 
Columbia  or  any  of  the  states  or  territories 
and  any  foreign  nation  or  nations,  shall  be 


STALEY  v.  ILLINOIS  CENTRAL  R.  CO. 


455 


liable  in  damages  to  any  person  suffering  in- 
jury while  he  is  employed  by  such  carrier 
in  such  commerce,  or,  in  case  of  the  death 
of  such  employee,  to  his  or  her  personal  rep- 
resentative, for  the  benefit  of  the  surviving 
widow  or  husband  and  children  of  such  em- 
ployee; and,  if  none,  then  of  such  employee's 
parents;  and,  if  none,  then  of  the  next 
of  kin  dependent  upon  such  employee,  for 
such  injury  or  death  resulting  in  whole  or 
in  part  from  the  negligence  of  any  of  the 
officers,  agents,  or  employees  of  such  carrier, 
or  by  reason  of  any  defect  or  insufficiency, 
due  to  its  negligence,  in  its  cars,  engines,  ap- 
pliances, machinery,  track,  roadbed,  works, 
boats,  wharves,  or  other  equipment.  .  . 

Sec.  3.  That  in  all  actions  hereafter 
brought  against  any  such  common  carrier 
by  railroad  under  or  by  virtue  of  any  of  the 
provisions  of  this  act  to  recover  damages  for 
personal  injuries  to  an  employee,  or  where 
such  injuries  have  resulted  in  his  death,  the 
fact  that  the  employee  may  have  been  guilty 
of  contributory  negligence  shall  not  bar  a 
recovery,  but  the  damages  shall  be 
diminished  by  the  jury  in  proportion  to  the 
amount  of  negligence  attributable  to  such 
employee:  Provided,  that  no  such  employee 
who  may  be  injured  or  killed  shall  be  held 
to  have  been  guilty  of  contributory  negli- 
gence in  any  case  where  the  violation  by 
such  common  carrier  of  any  statute  enacted 
for  the  safety  of  employees  contributed  to 
the  injury  or  death  of  such  employee. 

Sec.  4.  That  in  any  action  brought 
against  any  common  carrier  under  or  by 
virtue  of  any  of  the  provisions  of  this  act  to 
recover  damages  for  injuries  to,  or  the  death 
of,  a.ny  of  its  employees,  such  employee  shall 
not  be  held  to  have  assumed  the  risks  of  his 
employment  in  any  case  where  the  violation 
by  such  common  carrier  of  any  statute 
enacted  for  the  safety  of  employees  contrib- 
uted to  the  injury  or  death  of  such  employee. 

Sec.  5.  That  any  contract,  rule,  regulation, 
or  device  whatsoever,  the  purpose  or  intent 
of  which  shall  be  to  enable  any  common  car- 
rier to  exempt  itself  from  any  liability  cre- 
ated by  this  act,  shall  to  that  extent  be  void : 
Provided,  that  in  any  action  brought  against 
any  such  common  carrier  under  or  by  virtue 
of  any  of  the  provisions  of  this  act,  such 
common  carrier  may  set  off  therein  any  sum 
it  has  contributed  or  paid  to  any  insurance, 
relief  benefit,  or  indemnity  that  may  have 
been  paid  to  the  injured  employee  or  the 
person  entitled  thereto  on  account  of  the  in- 
jury or  death  for  which  said  action  was 
brought.  [35  Stat.  at  L.  65,  chap.  149,  Comp. 
Stat.  1913,  §  8657.] 

A  former  act  of  Congress  had  been  de- 
clared unconstitutional  in  Employers'  Lia- 
bility Cases  (Howard  v.  Illinois  C.  R.  Co.) 
207  U.  S.  463,  52  L.  ed.  297,  28  Sup.  Ct. 
L.R.A.1916A. 


Rep.  141,  because  that  act  attempted  to 
regulate  the  relation  of  master  and  servant 
in  intrastate  as  well  as  interstate  commerce. 
The  precise  question  here  before  us  was  not 
touched  upon  in  that  case.  It  is  reasonable 
to  presume  that  Congress,  in  passing  the 
later  act  which  we  now  have  under  con- 
sideration, intended  to  cover  the  relation 
of  master  and  servant  only  as  to  acts  direct- 
ly affecting  interstate  commerce.  The  first 
and  perhaps  the  leading  case  discussing  and 
construing  the  present  act  is  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  56 
L.  ed.  327,  346,  38  L.R.A.(N.S.)  44,  32  Sup. 
Ct.  Rep.  169,  176,  1  N.  C.  C.  A.  875.  In  that 
case  the  court  said  (p.  51 ):  "The  present 
act,  unlike  the  one  condemned  in  Employers' 
Liability  Cases,  supra,  deals  only  with  the 
liability  of  a  carrier  engaged  in  interstate 
commerce  for  injuries  sustained  by  its  em- 
ployees while  engaged  in  such  commerce." 

Again,  on  page  54 :  "Prior  to  the  present 
act  the  laws  of  the  several  states  were  re- 
garded as  determinative  of  the  liability  of 
employers  engaged  in  interstate  commerce 
for  injuries  received  by  their  employees  while 
engaged  in  such  commerce.  But  that  was 
because  Congress,  although  empowered  to 
regulate  that  subject,  had  not  acted  thereon, 
and  because  the  subject  is  one  which  falls 
within  the  police  power  of  the  states  in  the 
absence  of  action  by  Congress.  [Citing  au- 
thorities.] The  inaction  of  Congress,  how- 
ever, in  no  wise  affected  its  power  over  the 
subject.  [Citing  authorities.]  And,  now 
that  Congress  has  acted,  the  laws  of  the 
states,  in  so  far  as  they  cover  the  same  field, 
are  superseded,  for  necessarily  that  which  is 
not  supreme  must  yield  to  that  which  is." 

In  Fulgham  v.  Midland  Valley  R.  Co.  (C. 
C.)  167  Fed.  660,  the  court  said:  "It  is 
clear  that  the  act  of  April  22,  1908,  super- 
seded and  took  the  place  of  all  state  stat- 
utes regulating  relations  of  employers  and 
employees  engaged  in  interstate  commerce 
by  railroads.  It  covered  not  only  injuries 
sustained  by  employees  engaged  in  that 
commerce,  resulting  from  the  negligence  of 
the  master  and  his  servants,  and  from  de- 
fects in  the  designated  instrumentalities  in 
use  in  that  commerce,  but  also  dealt  with 
contributory  and  comparative  negligence 
and  assumed  risk,  making,  in  certain  cases 
at  least,  the  master  an  insurer  of  the  safety 
of  the  servant  while  in  his  employment  in 
that  commerce.  It  covers  and  overlaps  the 
whole  state  legislation,  and  is  therefore  ex- 
clusive. All  state  legislation  on  that  sub- 
ject must  give  way  before  that  act." 

To  the  same  effect,  see  Dewberry  v.  South- 
ern R.  Co.  (C.  C.)  175  Fed.  307;  Taylor  v. 
Southern  R.  Co.  (C.  C.)  178  Fed.  380;  Bot- 
toms v.  St.  Louis  &  S.  F.  R.  Co.  (C.  C.)  179 


456 


WORKMEN'S  COMPENSATION. 


Fed.  318;  Fithian  v.  St.  Louis  &  S.  F.  R. 
Co.  (C.  C.)  188  Fed.  842. 

In  Philadelphia,  B.  &  W.  R.  Co.  v.  Schu- 
bert, 224  U.  S.  603,  56  L.  ed.  911,  916,  32 
Sup.  Ct.  Rep.  589,  592,  1  N.  C.  C.  A.  892,  in 
discussing  the  question  as  to  whether  the 
injured  employee,  in  accepting  benefits 
under  a  contract  of  membership  in  a  rail- 
road relief  department,  thereby  took  his 
case  out  from  under  the  Federal  employ- 
ers' liability  act,  the  court  said  (p.  613)  : 
"To  subordinate  the  exercise  of  the  Federal 
authority  to  the  continuing  operation  of 
previous  contracts  would  be  to  place,  to  this 
extent,  the  regulation  of  interstate  com- 
merce in  the  hands  of  private  individuals, 
and  to  withdraw  from  the  control  of  Con- 
gress so  much  of  the  field  as  they  might 
choose  by  prophetic  discernment  to  bring 
within  the  range  of  their  agreements.  The 
Constitution  recognizes  no  such  limitation." 

In  Missouri,  K.  &  T.  R.  Co.  v.  Wulf,  226 
U.  S.  570,  57  L.  ed.  355,  363,  33  Sup.  Ct, 
Rep.  135,  137,  Ann.  Cas.  1914B,  134;  it  was 
stated  (p.  576)  :  "The  court  was  presumed 
to  be  cognizant  of  the  enactment  of  the  em- 
ployers' liability  act,  and  to  know  that,  with 
respect  to  the  responsibility  of  interstate 
carriers  by  railroad  to  their  employees  in- 
jured in  such  commerce  after  its  enactment, 
it  had  the  effect  of  superseding  state  laws 
upon  the  subject.'* 

In  Michigan  C.  R.  Co.  v.  Vreeland,  227 
U.  S.  59,  57  L.  ed.  417,  419,  33  Sup.  Ct.  Rep. 
192,  193,  Ann.  Cas.  191 4C,  176,  the  court,  in 
discussing  the  scope  of  the  Federal  employ- 
ers' liability  act,  said  (p.  65)  :  "We  think 
the  act  declares  two  distinct  and  independ- 
ent liabilities,  resting,  of  course,  upon  the 
common  foundation  of  a  wrongful  injury, 
but  based  upon  altogether  different  princi- 
ples. .  .  .  We  may  not  piece  out  this 
act  of  Congress  by  resorting  to  the  local 
statutes  of  the  state  of  procedure  or  that 
of  the  injury.  The  act  is  one  which  relates 
to  the  liability  of  railroad  companies  en- 
gaged in  interstate  commerce  to  their  em- 
ployees while  engaged  in  such  commerce. 
The  power  of  Congress  to  deal  with  the  sub- 
ject comes  from  its  power  to  regulate  com- 
merce between  the  states.  Prior  to  this  act 
Congress  had  not  deemed  it  expedient  to 
legislate  upon  the  subject,  though  its  power 
was  ample.  'The  subject  ...  is  one  which 
falls  within  the  police  power  of  the  state  in 
the  absence  of  legislation  by  Congress.' 
.  .  .  By  this  act  Congress  has  under- 
taken to  cover  the  subject  of  the  liability 
of  railroad  companies  to  their  employees  in- 
jured while  engaged  in  interstate  commerce. 
This  exertion  of  a  power  which  is  granted  in 
express  terms  must  supersede  all  legislation 
over  the  same  subject  by  the  states.  .  .  . 
It  therefore  follows  that  in  respect  of  state 
L.R.A.1916A. 


legislation  prescribing  the  liability  of  such 
carriers  for  injuries  to  their  employees 
while  engaged  in  interstate  commerce  this 
act  is  paramount  and  exclusive,  and  must 
remain  so  until  Congress  shall  again  remit 
the  subject  to  the  reserved  police  power  of 
the  states.  [Citing  authorities.]  The  stat- 
utes of  many  of  the  states  expressly  provide 
for  the  survival  of  the  right  of  action  which 
the  injured  person  might  have  prosecuted 
if  he  had  survived.  But,  unless  this  Federal 
statute  which  declares  the  liability  here  as- 
serted provides  that  the  right  of  action 
shall  survive  the  death  of  the  injured  em- 
ployee, it  does  not  pass  to  his  representa- 
tive, notwithstanding  state  legislation." 

Practically  to  the  same  effect  on  the  ques- 
tion involved  in  this  last  case  is  Gulf,  C.  & 
S.  F.  R.  Co.  v.  McGinnis,  228  U.  S.  173,  57 
L.  ed.  785,  33  Sup.  Ct.  Rep.  426,  3  N.  C.  C. 
A.  806. 

In  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Hesterly, 
228  U.  S.  702,  57  L.  ed.  1031,  1033,  33  Sup. 
Ct.  Rep.  703,  704,  the  court  passed  on  the 
question  whether  the  Federal  employers' 
liability  act  took  the  place  of  an  Arkansas 
statute  as  to  recovery  for  the  death  of  the 
plaintiff's  intestate.  The  state  supreme 
court  had  held  that  the  act  of  Congress  was 
only  supplementary,  and  that  the  judgment 
could  be  upheld  under  the  state  law.  The 
United  States  Supreme  Court  held  such 
ruling  wrong,  and  said  (p.  704)  :  "Coming 
to  the  merits,  it  now  is  decided  that  the  act 
of  Congress  supersedes  state  laws  in  the 
matter  with  which  it  deals.  [Citing  au- 
thorities.] The  act  deals  with  the  liability 
of  carriers,  while  engaged  in  commerce  be- 
tween the  states,  for  defects  in  cars." 

In  Pedersen  v.  Delaware,  L.  &  W.  R.  Co. 
supra,  the  question  was  raised  as  to  whether 
the  act  in  which  the  plaintiff  was  engaged 
was  interstate  commerce,  and  the  court  said 
(229  U.  S.  150,  57  L.  ed.  1127,  33  Sup.  Ct. 
Rep.  649,  Ann.  Cas.  1914C,  153,  3  N.  C.  C. 
A.  779)  :  "Considering  the  terms  of  the 
statute,  there  can  be  no  doubt  that  a  right 
of  recovery  fhereunder  arises  only  where  the 
injury  is  suffered  while  the  carrier  is  en- 
gaged in  interstate  commerce,  and  while  the 
employee  is  employed  by  the  carrier  in  such 
commerce;  .  .  .  The  true  test  always 
is:  Is  the  work  in  question  a  part  of  the 
interstate  commerce  in  which  the  carrier  is 
engaged  ?" 

To  the  same  effect  is  Illinois  C.  R.  Co.  v. 
Behrens,  233  U.  S.  473,  58  L.  ed.  1051,  34 
Sup.  Ct.  Rep.  646,  Ann.  Cas.  1914C,  163. 

In  St.  Louis,  S.  F.  &  T.  R.  Co.  v.  Seale, 
supra,  there  was  a  question  raised  as  to  the 
applicability  of  a  state  statute.  The  opinion 
states  on  this  point  (229  U.  S.  158,  57  L.  ed. 
1133,  33  Sup.  Ct.  Rep.  652,  Ann.  Cas.  1914C, 
156)  :  "If  the  Federal  statute  was  applica- 


STALEY  v.  ILLINOIS  CENTRAL  R.  CO. 


457 


ble,  the  state  statute  was  excluded  by  reason 
of  the  supremacy  of  the  former  under  ^he 
national  Constitution.  .  .  .  The  real 
question,  therefore,  is  whether  the  Federal 
statute  was  applicable,  and  this  turns  upon 
whether  the  injuries  which  caused  the  death 
of  the  deceased  were  sustained  while  the 
company  was  engaged,  and  while  he  was 
employed  by  it,  in  interstate  commerce." 

In  North  Carolina  R.  Co.  v.  Zachary,  232 
U.  S.  248,  58  L.  ed.  591,  594,  34  Sup.  Ct. 
Rep.  305,  307,  Ann.  Gas.  1914C,  159,  the 
court  said  (p.  256)  :  "In  order  to  bring  the 
case  within  the  terms  of  the  Federal  act, 
.  .  .  defendant  must  have  been,  at  the 
time  of  the  occurrence  in  question,  engaged 
as  a  common  carrier  in  interstate  commerce, 
and  plaintiff's  intestate  must  have  been  em- 
ployed by  said  carrier  in  such  commerce.  If 
these  facts  appeared,  the  Federal  act  gov- 
erned, to  the  exclusion  of  the  statutes  of  the 
state." 

It  was  there  held  that  the  Federal  act, 
and  not  the  state  law,  must  apply  as  to  the 
measure  of  recovery. 

In  Seaboard  Air  Line  R.  Co.  v.  Horton, 
233  U.  S.  492,  58  L.  ed.  1062,  1068,  34  Sup. 
Ct.  Rep.  635,  638,  Ann.  Gas.  1915B,  475,  8 
N.  C.  C.  A.  834,  there  is  a  very  exhaustive 
discussion  of  questions  that  are  closely 
analogous  to  the  one  here  under  considera- 
tion. That  case  is  perhaps  the  most  nearly 
in  point  to  this  one  of  any  decided  by  the 
United  States  Supreme  Court.  The  state 
courts,  both  trial  and  supreme,  had  held 
that  certain  state  statutes  were  applicable, 
and  in  a  sense  supplementary,  to  the  Fed- 
eral employers'  liability  act.  The  opinion 
in  the  case  held  to  the  contrary,  and  among 
other  things  said  (p.  501)  :  "It  is  settled 
that  since  Congress,  by  the  act  of  1908,  took 
possession  of  the  field  of  the  employer's  lia- 
bility to  employees  in  interstate  transporta- 
tion by  rail,  all  state  laws  upon  the  subject 
are  superseded.  Second  Employers'  Lia- 
bility Cases  (Mondou  v.  New  York,  N.  H. 
&  H.  R.  Co.)  223  U.  S.  1,  51,  56  L.  ed.  327, 
346,  38  L.R.A.(N.S.)  44,  32  Sup.  Ct.  Rep. 
169,  1  N.  C.  C.  A.  875.  The  act  is  quoted 
in  full  in  that  case  at  page  6  of  223  U.  S. 
By  its  first  section  a  right  of  action  is  con- 
ferred (under  conditions  specified)  for  in- 
jury or  death  of  the  employee  'resulting,  in 
whole  or  in  part,  from  the  negligence  of  any 
of  the  officers,  agents,  or  employees  of  such 
carrier,  or  by  reason  of  any  defect  or  in- 
sufficiency, due  to  its  negligence,  in  its  cars, 
engines,  appliances,  machinery,  track,  road- 
bed, works,  boats,  wharves,  or  other  equip- 
ment.' .  .  .  But  plainly,  with  respect  to 
the  latter  as  well  as  the  former  ground  of 
liability,  it  was  the  intention  of  Congress 
to  base  the  action  upon  negligence  only,  and 
to  exclude  responsibility  of  the  carrier  to 
L.R.A.1916A. 


its  employees  for  defects  in  insufficiencies 
not  attributable  to  negligence.  ...  To 
hold  that  under  the  statute  the  railroad 
company  is  liable  for  the  injury  or  death  of 
an  employee  resulting  from  any  defect  or 
insufficiency  in  its  cars,  engines,  appliances, 
etc.,  however  caused,  is  to  take  from  the  act 
the  words  'due  to  its  negligence.'  The  plain 
effect  of  these  words  is  to  condition  the  lia- 
bility upon  negligence.  .  .  .  The  in- 
structions above  quoted  imposed  upon  the 
employer  an  absolute  responsibility  for  the 
safe  condition  of  the  appliances  of  the  work. 

.  .  It  is  not  to  be  conceived  that,  in 
enacting  a  general  law  for  establishing  and 
enforcing  the  responsibility  of  common  car- 
riers by  railroad  to  their  employees  in  inter- 
state commerce,  Congress  intended  to  permit 
the  legislatures  of  the  several  states  to  de- 
termine the  effect  of  contributory  negli- 
gence and  assumption  of  risk  by  enacting 
statutes  for  the  safety  of  employees,  since 
this  would,  in  effect,  relegate  to  state  con- 
trol two  of  the  essential  fa.ctors  that  de- 
termine the  responsibility  of  the  employer." 
The  court  discusses  at  length  the  differ- 
ence between  the  doctrines  of  assumed  risk 
and  contributory  negligence,  and  then  con- 
tinues: "Here,  again,  the  court  appears  to 
have  followed  the  local  statute,  rather  than 
the  act  of  Congress;  for  [the  North  Caro- 
lina statute  already  quoted]  has  been  held 
by  the  state  supreme  court  to  abolish  as- 
sumption of  risk  as  a  bar  to  an  action  by  a 
railroad  employee  for  an  injury  attributable 
to  defective  appliances  furnished  by  the  em- 
ployer. .  .  .  The  trial  court,  while 
recognizing  that  the  act  of  Congress  ap- 
plied so  far  as  its  terms  extended,  and  that 
by  its  terms  the  employee  is  not  to  be  held 
to  have  assumed  the  risk  in  any  case  where 
the  violation  by  the  carrier  of  a  statute 
enacted  for  the  safety  of  employees  con- 
tributed to  the  injury,  at  the  same  time  held 
that,  since  no  statute  had  been  enacted 
covering  such  an  appliance  as  the  glass 
water  gauge,  the  rights  of  plaintiff  were 
such  as  he  would  have  under  the  state  law. 

.  .  It  is  true  that  such  an  appliance  as 
the  water  gauge  and  guard  glass  in  ques- 
tion is  not  covered  by  the  provisions  of  the 
safety  appliance  act,  or  any  other  law 
passed  by  Congress  for  the  safety  of  em- 
ployees, in  force  at  the  time  this  action 
arose.  But  the  necessary  result  of  this  is 
not  to  leave  the  employer  responsible  for  the 
consequences  of  any  defect  in  such  an  ap- 
pliance, excluding  the  common-law  rule  as 
to  assumption  of  risk,  but  to  leave  the  mat- 
ter in  this  respect  open  to  the  ordinary  ap- 
plication of  the  common-law  rule.  The 
adoption  of  the  opposite  view  would  in  effect 
leave  the  several  state  laws,  and  not  the  act 
of  Congress,  to  control  the  subject-matter." 


458 


WORKMEN'S  COMPENSATION. 


In  Wabash  R.  Co.  v.  Hayes,  234  U.  S.  86, 
58  L.  ed.  1226,  1230,  34  Sup.  Ct.  Rep.  729, 
6  N.  C.  C.  A.  224,  it  was  said  (p.  89)  : 
"Had  the  injury  occurred  in  interstate  com- 
merce, as  was  alleged,  the  Federal  act  un- 
doubtedly would  have  been  controlling,  and 
a  recovery  could  not  have  been  had  under 
the  common  or  statute  law  of  the  state;  in 
other  words,  the  Federal  act  would  have 
been  exclusive  in  its  operation — not  merely 
cumulative.  ...  On  the  other  hand,  if 
the  injury  occurred  outside  of  interstate 
commerce,  the  Federal  act  was  without  ap- 
plication, and  the  law  of  the  state  was  con- 
trolling." 

We  have  referred  to  and  commented  on 
practically  every  decision  of  the  United 
States  Supreme  Court  bearing  upon  this 
question.  The  decisions  from  other  courts 
could  not  be  controlling,  and,  at  most,  only 
persuasive.  Counsel  on  the  one  hand  argue 
that  under  the  fair  construction  of  the  Fed- 
eral employers'  liability  act  as  construed  by 
these  decisions  the  act  covers  the  field  of 
liability  of  common  carriers  by  railroad  for 
all  injuries  occurring  in  interstate  com- 
merce, whether  or  not  there  has  been  negli- 
gence on  the  part  of  the  employer,  while 
counsel  on  the  other  side  contend  that  the 
act  covers  only  liability  of  common  carriers 
in  interstate  commerce  when  there  has  been 
such  negligence.  It  is  clear  that  there  can 
be  no  recovery  under  the  Federal  employers' 
liability  act,  properly  construed,  in  the  ab- 
sence of  negligence  on  the  part  of  the  em- 
ployer, as  that  term  is  used  in  the  statute 
and  in  the  decisions  construing  the  same. 
But  if  the  question  of  negligence  alone  de- 
termines the  applicability  of  the  Federal 
law,  then,  before  it  can  be  held  that  such 
law  is  applicable,  there  must  be  a  final  ad- 
judication as  to  whether  the  injury  resulted 
from  negligence.  Obviously,  Congress  legis- 
lated on  more  than  the  subject  of  negligence. 
It  legislated  on  that,  but  also  on  the 
amount  of  recovery,  and  superseded  all  state 
laws  on  that  subject,  as  shown  by  the  de- 
cisions already  cited.  It  also  legislated  on 
the  subject  of  limitation  when  an  action 
could  be  begun.  St.  Louis,  I.  M.  &  S.  R.  Co 
v.  Hesterly,  228  U.  S.  702,  704,  57  L.  ed. 
1031,  1033,  33  Sup.  Ct.  Rep.  703,  704.  It 
also  legislated  as  to  what  persons  could  re- 
cover under  the  Federal  act,  and  when  an 
action  would  survive  the  death  of  the  in- 
jured person  (Taylor  v.  Taylor,  232  U.  S. 
363,  58  L.  ed.  638,  34  Sup.  Ct.  Rep.  350,  6 
N.  C.  C.  A.  436;  Michigan  C.  R.  Co.  v.  Vree- 
land,  227  U.  S.  59,  65,  57  L.  ed.  417,  419,  33 
Sup.  Ct.  Rep.  192,  193,  Ann.  Cas.  1914C, 
176)  ;  also  on  the  subject  of  assumed  risk 
and  contributory  negligence.  We  think  it 
is  clear,  also,  that  §  5  of  said  employers' 
liability  act  touches  upon  and  in  a  measure 
L.R.A.1916A. 


covers  cases  where  there  is  no  negligence  on 
the  part  of  either  employee  or  employer,  for 
it  is  well  known  that  contracts  for  insur- 
ance, relief  benefit,  or  indemnity  cover  not 
only  injuries  caused  by  negligence,  but  all 
injuries  caused  in  any  way  while  engaged 
in  the  employment  of  the  railroad.  If  the 
argument  of  counsel  on  this  question  were 
to  be  sustained,  it  would  usually  be  difficult, 
if  not  impracticable,  to  enforce  liability  for 
injuries  caused  while  both  parties  were  en- 
gaged in  interstate  commerce  on  railroads. 
This  fact  lends  strong  support,  in  our  judg- 
ment, to  the  argument  that  it  was  the  in- 
tention of  Congress  to  assume  control  of  the 
entire  field  of  liability  of  railroads  for  in- 
juries to  employees  occurring  in  interstate 
commerce.  The  reasoning  that  has  repeat- 
edly controlled  the  action  of  the  courts — 
that  is,  that  the  power  of  Congress  to  regu- 
late interstate  commerce  is  not  limited  by 
the  fact  that  intrastate  transactions  may 
have  become  so  interwoven  that  the  effective 
government  of  the  former  incidentally  con- 
trols the  latter  (Simpson  v.  Shepard,  supra, 
and  cases  cited) — would  also  apply  on  this 
question.  The  question  of  comparative 
negligence  of  employee  and  employer,  as- 
sumed risk,  contributory  negligence,  lia- 
bility under  indemnity  or  insurance  con- 
tracts, under  the  wording  of  the  act  are  so 
involved  with  that  of  negligence  that  it 
would  seem  impossible  to  separate  the  cases 
under  the  Federal  employers'  liability  act 
solely  on  the  line  of  the  negligence  of  the 
employer.  In  this  case  there  was  no  at- 
tempt to  prove  in  the  trial  court  whether 
the  employer  or  its  agents  were  in  any  way 
guilty  of  negligence.  It  seems  to  have  been 
assumed  in  that  court  by  all  parties  that 
that  question  was  not  the  turning  point  in 
the  case.  From  the  evidence  in  this  record 
no  satisfactory  finding  could  be  made  as  to 
whether  there  was  any  negligence  on  the 
part  of  the  employer.  In  the  majority  of 
the  cases  taken  to  the  United  States  Su- 
preme Court  under  the  Federal  employers' 
liability  act,  the  question  whether  there  was 
negligence  or  no  negligence  has  not  been 
referred  to  or  passed  on  in  any  way  in  that 
court,  and  in  none  of  them,  so  far  as  we 
are  advised,  has  the  question  of  negligence 
been  the  turning  point  of  the  case. 

Counsel  for  plaintiff  in  error  argue  that 
the  title  of  the  Federal  employers'  liability 
act,  especially  the  phrase  "certain  cases," 
shows  that  Congress  did  not  intend  to  cover 
all  cases  of  injuries  occurring  on  railroads 
while  engaged  in  interstate  commerce.  With 
this  we  do  not  agree.  We  think  the  phrase 
"in  certain  cases"  was  inserted  in  this  title 
to  obviate  some  of  the  defects  suggested  in 
the  title  of  the  act  held  unconstitutional  in 
207  U.  S.  463,  52  L.  ed.  297,  28  Sup.  Ct. 


STALEY  v.  ILLINOIS  CENTRAL  R.  CO. 


459 


Hep.  141,  supra,  and  that  the  "certain  cases" 
was  meant  to  limit  it  to  those  cases  where 
.the  liability  arose  in  interstate  commerce. 
The  wording  of  the  statute  and  the  reason- 
ing in  these  decisions  lead  inevitably  to  the 
•conclusion  that  "the  particular  subject," 
"subject-matter,"  "field,"  or  "chosen  field" 
taken  possession  of  by  the  Federal  employ- 
ers' liability  act  was  the  employer's  lia- 
•bility  for  injuries  to  employees  in  interstate 
transportation  by  rail;  and  the  real  ques- 
tion, as  clearly  stated  in  distinct  terms  in 
several  of  the  cases  that  we  have  quoted 
from  in  deciding  whether  the  Federal  stat- 
iite  is  applicable,  is  whether  the  injury  for 
Avhich  the  suit  was  brought  was  sustained 
while  the  company  and  the  injured  employee 
"were  engaged  in  interstate  commerce.  The 
Federal  employers'  liability  act  lias  taken 
possession  of — has  occupied — that  field  for 
the  purpose  of  calling  into  play  therein  this 
•exclusive  power  of  the  Federal  government. 
Necessarily,  all  common  or  statute  law  of 
this  state  on  that  subject  has  been  super- 
seded. The  field  of  liability  as  to  employees 
injured  while  engaged  in  interstate  com- 
merce on  railroads  is  occupied  exclusively 
by  the  Federal  employers'  liability  act — and 
that,  too,  regardless  of  the  negligence  or 
lack  of  negligence  of  either  party  to  the 
litigation.  Beyond  question,  the  Federal 
employers'  liability  act  superseded,  as  to  in- 
juries of  employees  engaged  on  railroads  in 
interstate  commerce,  all  statute  or  common 
law  in  force  in  the  state  of  Illinois  previous 
to  the  passage  of  the  workmen's  compensa- 
tion act.  That  was  the  precise  holding  in 
Wabash  R.  Co.  v.  Hayes,  234  U.  S.  86,  89, 
58  L.  ed.  1226,  1230,  34  Sup.  Ct.  Rep.  729,  6 
N.  C.  C.  A.  224.  The  legislature,  in  passing 
the  Illinois  workmen's  compensation  act  of 
1911,  intended  that  wherever  it  was  in  force 
it  should  supersede  all  other  state  statutes 
and  the  common  law  as  to  the  liability  of 
employers  for  injuries  to  employees,  for  §  1 
of  said  act  provides,  among  other  things, 
that  any  employer  having  elected  to  come 
within  its  provisions  will  "thereby  relieve 
himself  from  any  liability  for  the  recovery 
of  damages,  except  as  herein  provided."  The 
United  States  Supreme  Court  takes  that 
view  of  a  similar  compensation  act  in  the 
state  of  Ohio  in  Jeffrey  Mfg.  Co.  v.  Blagg, 
235  U.  S.  571,  59  L.  ed.  364,  35  Sup.  Ct. 
Rep.  167,  7  N.  C.  C:  A.  570,  in  which  case, 
in  referring  to  that  state  act,  the  court 
said:  "It  is  one  of  the  laws  which  has  be- 
come more  or  less  common  in  the  states,  and 
aims  to  substitute  a  method  of  compensa- 
tion, by  means  of  investigation  and  hearing 
before  a  board,  for  what  was  regarded  as  an 
unfair  and  inadequate  system,  based  upon 
statutes  or  the  common  law." 

The   Illinois   legislature,    in    passing  the 
L.R.A.1916A. 


act  here  in  question,  clearly  understood  that 
certain  injuries  occurring  in  interstate  com- 
merce should  not  be  within  the  provisions 
of  the  act,  for  in  §  2  it  is  provided  that  it 
should  apply  "in  the  business  of  carriage  by 
land  or  water  .  .  .  (except  as  to  car- 
riers which  shall  be  construed  to  be  ex- 
cluded herefrom  by  the  laws  of  the  United 
States  relating  to  liability  to  their  em- 
ployees for  personal  injuries  while  engaged 
in  interstate  commerce,  where  such  laws  are 
held  to  be  exclusive  of  all  state  regulations 
providing  compensation  for  accidental  in- 
juries or  death  suffered  in  the  course  of  em- 
ployment) ." 

Counsel  for  plaintiff  in  error  argue  that 
the  provision  just  quoted  gives  no  greater 
force  to  the  conditions  therein  set  forth  than 
would  be  given  under  the  Federal  employ- 
ers' liability  act  independent  of  this  provi- 
sion in  the  Illinois  act.  Without  question 
that  is  true;  but  this  provision  tends  strong- 
ly to  show  that  the  state  legislature  did  not 
intend  to  place  within  the  provisions  of 
the  workmen's  compensation  act  all  injuries 
that  occurred  on  railroads  in  Illinois, 
whether  the  injured  person  was  engaged  in 
intrastate  or  interstate  commerce.  This 
argument  of  counsel  would  logically  lead  to 
that  conclusion.  With  this  we  cannot  agree. 

The  conclusion  we  have  reached  is  sup- 
ported by  the  reasoning  in  Wagner  v.  Chi- 
cago &  A.  R.  Co.  265  111.  245,  106  N.  E.  809 ; 
Patry  v.  Chicago  &  W.  I.  R.  Co.  265  111.  310, 
106  N.  E.  843,  and  Devine  v.  Chicago,  R.  I. 
&  P.  R.  Co.  266  111.  248,  107  N.  E.  595, 
where  this  court  has  had  under  considera- 
tion the  construction  of  the  Federal  em- 
ployers' liability  act.  The  conclusion  also 
finds  support  in  the  following  cases :  Trues- 
dell  v.  Chesapeake  &  0.  R.  Co.  159  Ky.  718, 
169  S.  W.  471 ;  Cincinnati,  N.  0.  &  T.  P.  R. 
Co.  v.  Hill,  161  Ky.  237,  170  S.  W.  599; 
Reeve  v.  Northern  P.  R.  Co.  82  Wash.  268, 
L.R.A.1915C,  '37,  144  Pac.  63,  8  N.  C.  C.  A. 
167;  Lauer  v.  Northern  P.  R.  Co.  83  Wash. 
465,  145  Pac.  606;  New  York,  C.  &  St.  L.  R. 
Co.  v.  Niebel,  131  C.  C.  A.  248,  214  Fed. 
952;  Schweig  v.  Chicago,  M.  &  St.  P.  R. 
Co.  132  C.  C.  A.  660,  216  Fed.  750,  7  N.  C. 
C.  A.  135.  We  think,  also,  the  reasoning 
of  the  courts  with  reference  to  the  Federal 
bankruptcy  law,  and  the  state  statutes 
touching  on  the  same  subject,  tend  to  sup- 
port the  same  conclusion,  as  shown  by  the 
following,  among  other,  authorities :  Stur- 
ges  v.  Crowninshield,  4  Wheat.  122,  4  L.  ed. 
529;  Ogden  v.  Saunders,  12  Wheat.  213,  6 
L.  ed.  606;  Harbaugh  v.  Costello,  184  111. 
110,  75  Am.  St.  Rep.  147,  56  N.  E.  363; 
16  Am.  &  Eng.  Enc.  Law,  2d  ed.  642,  and 
cases  cited. 

Counsel  for  plaintiff  in  error  insist  that 
the  conclusion  we  have  reached  concerning 


460 


WORKMEN'S  COMPENSATION. 


the  field  covered  by  the  Federal  liability 
act  is  inconsistent  with  the  holdings  of  the 
United  States  Supreme  Court  in  certain  de- 
cisions where  the  question  has  been  con- 
sidered as  to  whether  the  Federal  and  state 
statutes  deal  with  the  same  identical  sub- 
jects. They  rely  very  strongly  upon  Sher- 
lock v.  Ailing,  93  U.  S.  99,  23  L.  ed.  819. 
We  do  not  consider  that  case  in  any  way 
in  conflict  with  the  conclusions  we  have 
reached.  It  has  been  cited  and  referred  to 
many  times  by  the  United  States  Supreme 
Court  and  more  than  once  in  the  cases  that 
we  have  heretofore  cited.  The  principal 
holding  of  the  court  in  that  case,  as  we 
read  the  opinion,  is,  that  the  action  of  Con- 
gress as  to  the  regulation  of  commerce  or 
the  liability  for  its  infringement  is  exclusive 
of  state  authority;  but  until  some  action 
is  taken  by  Congress,  the  legislation  of  a 
state  not  directed  against  commerce  or  any 
of  its  regulations,  but  generally  to  the 
rights  and  duties  of  citizens,  is  legal,  al- 
though it  may  indirectly  and  remotely  affect 
the  interests  of  foreign  and  interstate  com- 
merce or  persons  engaged  in  such  com- 
merce. The  late  case  of  Sligh  v.  Kirkwood, 
237  U.  S.  52,  59  .L.  ed.  835,  35  Sup.  Ct.  Rep. 
501,  is  one  of  the  same  class  of  cases.  The 
Case  of  Atlantic  Coast  Line  R.  Co.  v.  Geor- 
gia, 234  U.  S.  280,  293,  58  L.  ed.  1312,  1318, 
34  Sup.  Ct.  Rep.  829,  832,  where  a  statute  of 
Georgia  was  upheld  requiring  locomotives 
engaged  in  interstate  commerce  to  be 
equipped  with  electric  headlights,  so  far  as 
it  applies  to  the  facts  in  this  case,  has  been 
effectually  construed  by  the  more  recent  de- 
cision of  the  United  States  Supreme  Court 
in  Southern  R.  Co.  v.  Railroad  Commission, 
236  U.  S.  439,  446,  59  L.  ed.  661,  665,  35 
Sup.  Ct.  Rep.  304,  305.  The  field  of  legis- 
lation that  was  being  discussed  in  the  elec- 
tric headlight  case  was  not  a  liability  for 
injury  to  an  employee  while  engaged  in  in- 
terstate commerce,  but  whether  the  subject 
of  electric  headlights  was  in  the  field  al- 
ready covered  by  Federal  legislation  as  to 
safety  appliances.  The  question  of  the  Fed- 
eral employers'  liability  act  was  not  con- 
sidered or  touched  upon  in  that  case.  In 
none  of  the  decisions  cited  and  relied  on  by 
counsel  for  plaintiff  in  error  was  anything 
said  that  in  any  way  limited  or  modified 
the  doctrine  laid  down  in  the  decisions  here- 
tofore considered,  that  Congress,  by  the  Fed- 
eral employers'  liability  act,  intended  to 
occupy  the  field  of  employers'  liability  to 
employees  for  all  injuries  occurring  on  rail- 
roads while  engaged  in  interstate  commerce. 
Under  those  decisions  the  conclusion  is  in- 
evitable that  in  a  suit  to  recover  for  an  in- 
jury on  a  railroad,  occurring  while  the 
employer  and  employee  were  engaged  in  in- 
terstate commerce,  the  Federal  employers' 
liability  act  alone  would  control,  and  could 
L.R.A.1916A. 


not  be  pieced  out  or  supplemented  by  any 
state  statute.  The  decedent  having  been  en- 
gaged, at  the  time  of  his  death,  in  interstate 
commerce,  the  recovery  must  be  had,  if  at 
all,  under  and  subject  to  the  provisions  of 
the  Federal  employers'  liability  act. 

Counsel  for  plaintiff  in  error  argue  that 
many  of  the  injuries  on  railroads  while  en- 
gaged in  interstate  commerce  occur  with- 
out any  negligence  on  the  part  of  anyone, 
and  that  therefore  the  conclusion  here 
reached  will  leave  many  injured  employees — 
or,  if  the  injury  causes  death,  their  relatives 
— without  any  opportunity  for  compensa- 
tion, and  is  contrary  to  the  spirit  of  the 
times,  which  demands  humane  legislation 
covering  this  subject.  That  argument  may 
well  be  addressed  to  the  Federal  Congress. 
This  court  must  confine  itself  to  the  proper 
construction  and  operation  of  this  act,  and 
cannot  consider  the  evils  which  it  is  claimed 
will  arise  from  the  execution  of  the  Federal 
employers'  liability  act,  however  real  those 
evils  may  be. 

It  is  suggested,  but  not  argued  in  the 
briefs  of  counsel  for  plaintiff  in  error,  that 
the  rights  and  liabilities  under  the  two  acts 
here  in  question  are  in  a  sense  cumulative, 
and  that  the  payment  of  compensation  under 
the  state  act  would  not  bar  an  action  under 
the  Federal  act,  under  the  reasoning  of  the 
United  States  Court  in  Philadelphia,  B.  & 
W.  R.  Co.  v.  Schubert,  224  U.  S.  603,  613,  56 
L.  ed.  911,  916,  32  Sup.  Ct.  Rep.  589,  592, 
]  N.  C.  C.  A.  892,  and  other  like  cases.  Can 
the  workmen's  compensation  act  of  Illinois, 
requiring  compensation  to  be  paid  to  em- 
ployees by  employers  for  injuries,  be  fairly 
included  within  the  terms  of  §  5  of  the  Fed- 
eral employers'  liability  act? 

Workmen's  compensation  and  industrial 
insurance  laws  had  not  been  adopted  in  any 
of  the  states  of  this  country  in  1908,  at 
the  time  the  Federal  employers'  liability  act 
went  into  effect.  The  first  state  act  of  that 
kind  was  passed  in  June,  1910,  by  the  state 
of  New  York.  Since  then  at  least  twenty- 
one  other  states  have  passed  such  laws. 
Harper,  Workmen's  Compensation,  p.  6. 
Congress,  therefore,  did  not  have  workmen's 
compensation  acts  particularly  in  mind 
when  it  drafted  the  Federal  liability  law. 
It  is  true  that  this  court  has  held  that  when 
parties  have  elected  to  come  under  the  work- 
men's compensation  act  of  this  state  the  pro- 
visions of  that  act  thereby  become  a  part 
of  the  contract  of  employment  (Deibeikis 
v.  Link-Belt  Co.  261  111.  454,  104  N.  E.  211, 
Ann.  Cas.  1915A,  241,  5  N.  C.  C.  A.  401), 
and  therefore  that  contract  might  be  in- 
cluded in  the  term  "any  contract,"  referred 
to  in  the  first  part  of  said  §  5,  but  the  con- 
tract referred  to  in  that  section  is  one  that 
has  been  entered  into  for  the  purpose  of 
enabling  the  common  carrier  "to  exempt 


STALEY  v.  ILLINOIS  CENTRAL  R.  CO. 


461 


itself  from  liability  created"  by  the  Federal 
employers'  liability  act.  Surely  it  cannot 
be  reasonably  held  that  the  workmen's  com- 
pensation act  is  a  contract  entered  into  for 
that  purpose.  The  words  "insurance  re- 
lief," "benefit,"  or  "indemnity"  would,  none 
of  them,  in  the  connection  in  which  they 
are  used,  seem  to  include  the  compensation 
to  be  paid  under  the  workmen's  compensa- 
tion act.  While  that  act  is  based  upon  the 
same  general  principles  as  workmen's  benefit 
insurance,  it  would  hardly  be  supposed  that 
Congress,  in  said  §  5,  intended  to  cover  such 
a  compensation  act  as  the  one  here  under 
consideration.  As  already  stated,  the  Feder- 
al liability  act,  in  a  certain  sense,  in  some 
cases,  at  least  requires  the  master  to  be 
an  insurer  of  the  safety  of  his  employee, 
the  same  as  does  the  workmen's  compensa- 
tion act.  Having  in  mind  the  history  of  the 
legislation,  both  Federal  and  state,  on  the  ! 
questions  here  under  consideration,  we  can  i 


reach  no  other  conclusion,  under  the  word- 
ing of  said  §  5,  than  that  the  Illinois  work- 
men's compensation  act  was  not  intended 
to  be  included  by  Congress  within  any  of 
the  exceptions  stated  in  said  section.  What 
has  already  been  said  heretofore  in  this  opin- 
ion with  reference  to  the  intent  of  the  Illi- 
nois legislature,  in  passing  the  workmen's 
compensation  act,  practically  demonstrates 
that  that  body  did  not  intend  the  remedy 
thereunder  to  be  in  any  sense  cumulative  to 
the  remedy  provided  for  in  the  Federal  em- 
ployers' liability  act.  Congress  could  in- 
clude workmen's  compensation  acts  within 
the  exception  provided  for  in  said  §  5,  but 
has  not  yet  seen  fit  so  to  do. 

The  judgment  of  the  Appellate  and  Cir- 
cuit Courts  must  be  reversed,  and  the  cause 
remanded. 

Petition  for  rehearing  denied. 


Annotation — Limitation  of  application  of  workmen's  compensation  statute 

by  Federal  laws. 


The  extent  to  which  the  state  work- 
men's compensation  statutes  are  limited 
in  their  application  by  Federal  laws  is 
a  subject  upon  which  the  state  courts 
are  in  a  decided  conflict,  and  upon  which 
there  appears  as  yet  to  be  no  authorita- 
tive ruling  by  the  United  States  Su- 
preme Court.  The  application  of  the  j 
state  acts  has  been  held  to  be  limited  | 
by  two  branches  of  Federal  jurisdiction, 
— admiralty,  and  the  jurisdiction  given 
by  the  Federal  employers'  liability  act, 
which  affords  a  remedy  to  an  employee 
of  an  interstate  carrier  by  rail  who  has 
been  injured  by  the  negligence  of  the 
carrier,  or  of  its  officers,  agents,  or  em- 
ployees; but,  as  was  said  above,  the 
state  courts  are  not  unanimous  in  their 
conclusion  upon  these  points. 

The  holding  in  STATE  EX  REL.  JARVIS 
v.  DAGGETT,  that  a  state  cannot  extend 
the  provisions  of  a  workmen's  compen- 
sation act  to  injuries  occurring  on  ves- 
sels on  local  waters  within  the  admiral- 
ty jurisdiction  of  the  United  States, 
with  respect  to  which  Congress  has  es- 
tablished a  measure  of  liability  limited 
to  the  value  of  the  owner's  interest  in 
the  vessel  and  freight  pending  at  the 
time  of  the  injury,  is  contrary  to  the 
holdings  of  the  courts  of  last  resort  in 
New  York  and  Connecticut. 

Thus,  in  Re  Walker  (1915)  215  N.  Y. 
529,  109  N.  E.  604,  it  was  held  that  the 
New  York  act  applies  to  an  injury  to  a 
workman  occurring  upon  a  navigable 
river,  since  by  the  Judicial  Code  of  the 
United  States,  $$24  and  256,  the  ad- 
miralty jurisdiction  is  not  exclusive,  but 
L.R.A.1916A. 


suitors  are  in  all  cases  saved  the  right 
of  a  common-law  remedy  where  the  com- 
mon law  is  competent  to  give  it,  and  the 
compensation  act  is  a  substitute  for  this 
common-law  remedy.  The  court  said: 
"But  it  is  argued  that  the  act  purports 
to  grant  exemption  from  further  liabili- 
ty to  those  who  comply  with  it,  and 
that  as  such  exemption  is  not  effectual 
in  the  case  of  employers  whose  prop- 
erty may  be  proceeded  against  in  ad- 
miralty, it  is  as  to  them  a  denial  of  the 
equal  protection  of  the  laws.  The  ex- 
emption, however,  is  from  suits  at  com- 
mon law,  of  which  all  employers  com- 
plying with  the  act  equally  have  the 
benefit.  If  another  remedy  remain,  it 
results  from  the  nature  of  the  case,  and 
not  from  any  attempt  at  discrimination 
on  the  part  of  the  legislature.  All  in 
the  same  case  are  treated  alike.  Em- 
ployers in  the  situation  of  the  appellant 
are  subjected  to  two  remedies  now,  pre- 
cisely as  they  were  before  the  passage 
of  the  act.  A  new  remedy  has  been 
substituted  for  the  common-law  remedy, 
from  which  the  employer  is  granted 
exemption." 

And  in  Kennerson  v.  Thames  Tow- 
boat  Co.  ante,  436,  it  was  held  that  a 
provision  for  compensation  for  injuries, 
made  part  of  a  contract  of  employment 
between  citizens  of  the  state,  which  is 
to  be  executed  in  part  upon  the  navi- 
gable waters  outside  the  jurisdiction  of 
the  state,  may  be  enforced  in  the  state 
court,  notwithstanding  the  injury  oc- 
curred outside  the  state  within  the 
jurisdiction  of  the  admiralty  court. 


462 


WORKMEN'S  COMPENSATION. 


A  Federal  district  court  has  held  that 
the  Washington  act  does  not  prevent  a 
workman  injured  while  in  the  employ- 
ment of  a  vessel,  from  proceeding  in  rem 
in  admiralty  to  enforce  a  lien  given  by 
the  maritime  law.  The  Fred  E.  San- 
ders (1913)  208  Fed.  724,  4  N.  C.  C.  A. 
891.  But  the  same  court  subsequently 
held  that  where  an  injured  employee 
takes  the  benefit  of  the  state  act  in  lieu 
of  his  common-law  remedy,  he  cannot 
thereafter  pursue  the  remedy  given  by 
the  maritime  law.  212  Fed.  545,  5  N.  C. 
C.  A.  97. 

A  suit  by  a  workman  employed  as  a 
machinist  to  aid  in  the  repair  of  a  ves- 
sel in  a  dry  dock,  to  recover  compensa- 
tion under  the  New  Jersey  act  for  in- 
juries received  while  so  engaged,  is  not 
one  founded  or  sounding  in  tort,  so  as 
to  be  subject  to  the  exclusive  control 
of  the  maritime  law.  Berton  v.  Tietjen 
&  L.  Dry  Dock  Co.  219  Fed.  763.  And 
it  was  held  that  the  Federal  court  will 
not  refuse  to  remand  such  a  suit  be- 
cause the  owner  of  the  dock  claimed  the 
benefit  of  the  section  of  the  United 
States  statute  providing  for  limitation 
of  liability  in  favor  of  the  owners  of 
vessels  or  ships,  since  a  dry  dock,  al- 
though capable  of  floating  and  being 
towed  from  place  to  place,  is  not  a  ves- 
sel within  the  meaning  of  such  statute. 

A  number  of  the  state  compensation 
statutes  contain  provisions  to  the  effect 
that  they  apply  to  employers  and  em- 
ployees in  interstate  or  foreign  com- 
merce, for  whom  a  rule  of  liability  or 
method  of  compensation  has  been  or 
shall  be  established  by  the  Congress  of 
the  United  States,  only  to  the  extent 
that  their  mutual  connection  with  intra- 
state  work  may  and  shall  be  clearly 
separable  and  distinguishable  from  in- 
terstate or  foreign  commerce,  except 
that  the  employer  and  his  employees 
working  only  within  the  state  may,  sub- 
ject to  the  approval  of  the  commission 
and  so  far  as  not  forbidden  by  any  act 
of  Congress,  accept  and  become  bound 
by  the  provisions  of  the  act  in  like  man- 
ner and  with  the  same  effect  in  all  re- 
spects as  provided  for  other  employers 
and  their  employees.  These  provisions 
of  the  New  York  act  will  be  found  in 
the  opinion  in  Jensen  v.  Southern  P. 
Co.  ante,  403. 

This  section  has  been  construed  in  a 
number  of  decisions. 

Thus,  in  Connole  v.  Norfolk  &  W.  R. 
Co.  (1914)  216  Ted.  823,  it  was  held 
that  by  §  51  of  the  Ohio  act,  the  statute 
applied  to  interstate  carriers  only  when 
the  carrier  and  the  employee  in  question 
were  engaged  in  purely  intrastate  busi- 
L.R.A.1916A. 


ness,  and  then  only  when  the  carrier- 
and  any  of  the  workmen  have  volun- 
tarily elected  to  come  in  under  the  act; 
and  where  no  averment  is  made  in  the 
petition  that  the  employer  and  employee 
have  so  voluntarily  elected,  the  petition 
will  be  stricken  out.  In  speaking  of  this 
section  of  the  Ohio  act,  the  court  said: 
"The  section  with  certain  changes,  only 
one  of  which  affects  anything  here  un- 
der consideration,  is  the  same  as  §  6604- 
18  of  the  Washington  statute  (Rem.  & 
Bal.  Anno.  Code  Supp.  1913).  The  only 
change  that  need  be  noted  here  is  the 
substitution  in  the  Ohio  act  of  the  words 
'and  then  only  when/  for  the  words 
'except  that  any  such/  occurring  in  that 
of  Washington.  The  words  in  the  Wash- 
ington act  enlarge  the  classes  of  persons 
to  whom  the  act  may  apply,  whereas  the 
Ohio  act  restricts  such  classes.  The  one 
extends  the  application  of  the  statute, 
and  the  other  limits  it.  The  Washing- 
ton statute  is  plain  and  intelligible,  but 
does  not  appear  to  have  been  con- 
strued." 

And  in  Kennerson  v.  Thames  Towboat 
Co.  ante,  436,  it  was  held  that  the  ex- 
ception in  the  Connecticut  act  relative  to- 
injuries  arising  in  interstate  or  foreign 
commerce  has  reference  only  to  the  Fed- 
eral employers'  liability  act,  and  does 
not  apply  to  a  death  caused  by  the 
foundering  of  a  tug  without  negligence 
on  navigable  waters  of  the  United  States. 

And  in  Jensen  v.  Southern  P.  Co. 
ante,  403,  it  was  held  that  the  New  York 
act  applies  to  injuries  received  in  inter- 
state commerce  so  far  as  they  are  not 
included  in  the  Federal  employers'  lia- 
bility act. 

The  court  said  that  in  §  114  of  the 
New  York  act,  providing  that  "the  pro- 
visions of  this  chapter  shall  apply  to- 
employers  and  employees  engaged  IL  in- 
trastate, and  also  in  interstate  or  for- 
eign commerce,  for  whom  a  rule  of  lia- 
bility or  method  of  compensation  has 
been  or  may  be  established,"  etc.,  the 
words  "may  be"  should  be  construed  in 
the  sense  of  "shall  be,"  so  as  to  make 
the  legislature  say  that  it  did  not  intend 
to  enter  any  field  from  which  it  had 
been  or  should  in  the  future  be  excluded 
by  the  action  of  the  Congress  of  the 
United  States. 

It  was  also  held  that  the  express- 
provision  for  injuries  received  in  long- 
shore work  in  one  section  of  the  work- 
men's compensation  act  excludes  such 
injuries  from  the  provisions  of  another 
section  dealing  with  injuries  received  in 
the  operation  of  vessels  other  than  those 
of  other  states  or  countries  used  in  in- 
terstate or  foreign  commerce. 


LIMITATION  BY  FEDERAL  LAWS. 


463 


A  state  workmen's  compensation  act 
may  be  made  to  apply  to  injuries  re- 
ceived in  interstate  commerce  so  far  as 
they  are  not  provided  for  by  the  Fed- 
eral act,  or  the  state  is  not  forbidden  by 
Congress  to  provide  for  such  injuries. 
So  that,  Congress  having  in  no  way 
legislated  in  regard  to  interstate  com- 
merce by  water,  the  state  has  a  right 
to  enact  laws  incidentally  affecting  such 
commerce.  Stoll  v.  Pacific  S.  S.  Co. 
(1913)  205  Fed.  169,  3  N.  C.  C.  A.  606, 
approved  in  Kennerson  v.  Thames  Tow- 
boat  Co.  ante,  436. 

And  the  Federal  employers'  liability 
act,  applying  to  carriers  by  railroad 
only,  does  not  apply  to  injuries  received 
upon  a  steamboat  operated  by  an  inter- 
state railroad,  but  not  related  to  its  rail 
transportation.  Jensen  v.  Southern  P. 
Co.  ante,  403. 

Nor  does  it  apply  to  a  railroad  com- 
pany whose  sole  relation  to  the  employee 
is  as  a  lessee  of  a  canal  on  which  the 
said  employee  worked  for  wages  paid 
by  the  railroad  company.  Hammill  v. 
Pennsylvania  B.  Co.  (1915)  —  N.  J.  L. 
— ,  94  Atl.  313. 

There  is  a  sharp  conflict  of  authority 
between  the  courts  upon  the  question 
whether  or  not  the  state  compensation 
act  applies  to  injuries  of  employees  of 
interstate  carriers  by  rail,  where  the  in- 
juries were  received  while  the  employee 
was  himself  engaged  in  furthering  inter- 
state commerce. 

The  decision  in  STALEY  v.  ILLINOIS 
C.  R.  Co.  very  clearly  expresses  the 
position  of  those  courts  which  hold  that 
the  state  acts  cannot  in  any  case  apply 
to  injuries  of  employees  of  interstate 
carriers  by  rail,  where  the  employee 
when  injured  was  himself  furthering  in- 
terstate commerce,  although  the  injury 
may  not  have  been  caused  by  the  negli- 
gence of  the  employer,  and  consequently 
no  recovery  could  be  had  under  the 
Federal  act. 

Several  decisions  of  the  California 
court  are  to  the  same  effect.  Thus,  the 
California  compensation  act  does  not 
cover  the  case  of  a  special  watchman 
employed  by  a  railroad  company,  who 
after  driving  trespassers  off  an  inter- 
state train,  dismounted  from  the  train 
and  started  to  pursue  the  men  in  order 
to  drive  them  from  the  company's  prop- 
erty, and  was  injured  by  the  explosion 
of  a  cartridge  in  his  revolver,  which  had 
fallen  on  the  ground.  Smith  v.  Indus- 
trial Acci.  Commission  (1915)  26  Cal. 
App.  560,  147  Pac.  601.  After  quoting 
from  the  decision  of  the  United  States 
Supreme  Court  in  Michigan  C.  R.  Co. 
v.  Vreeland  (1913)  227  U.  S.  59,  57  L. 
L.R.A.1936A. 


ed.  417,  33  Sup.  Ct.  Rep.  192,  Ann.  Gas. 
1914C,  176,  the  court  said:  "The  ex- 
press declaration  in  these  decisions  that 
the  Federal  statute  has  taken  hold  of 
the  entire  subject  of  the  liability  of  a 
common  carrier  engaged  in  interstate 
business,  to  its  employees  for  accidental 
injuries  suffered  by  the  latter  while  per- 
forming their  duties,  makes  it  unneces- 
sary to  digest  those  decisions  approving 
the  operation  of  the  state  statutes  where 
the  national  legislation  is  not  of  such  a 
character  as  to  indicate  that  Congress 
intended  to  cover  the  whole  field.  There 
are  such  decisions,  and  they  give  ex- 
pression to  the  general  rule  that  a  state 
statute  enacted  under  the  right  of  the 
reserve  power  is  not  to  be  set  aside  or 
overridden  by  the  law  of  Congress,  un- 
less there  is  an  actual  repugnance.  But 
these  decisions  recognize  the  alternative 
condition  that  such  state  statutes  will 
be  thus  overridden  where  Congress  has 
manifested  a  purpose  to  exercise  its 
paramount  authority  over  the  subject." 

So,  in  Southern  P.  Co.  v.  Pillsbury 
(1915)  —  Cal.  — ,  L.R.A.— ,  — ,  151  Pac. 
277,  the  supreme  court  of  California 
annulled  an  award  of  the  Industrial 
Accident  Commission  upon  the  ground 
that  the  employee  was  at  the  time  of  the 
injury  "engaged  in  interstate  commerce 
within  the  meaning  of  the  Federal  act." 
In  this  case  it  does  not  appear  in  the 
opinion  whether  or  not  the  plaintiff's 
injury  was  caused,  or  was  alleged  to 
have  been  caused,  by  the  negligence  of 
the  railroad  company. 

In  Young  v.  Duncan  (1914)  218  Mass. 
346,  106  N.  E.  1,  the  court  said  that  the 
Massachusetts  act  probably  did  not  em- 
brace employees  subject  to  the  Federal 
employers'  liability  act. 

On  the  other  hand,  the  New  Jersey 
court  has  held  that  the  Federal  employ- 
ers' liability  act  does  not  prevent  the 
applicability  of  the  New  Jersey  work- 
men's compensation  act  in  the  case  of  an 
injury  to  a  brakeman  on  an  interstate 
train,  since  the  two  acts  deal  with  en- 
tirely separate  matters.  Rounsaville  v. 
Central  R.  Co.  (1915)  —  N.  J.  L.  — ,  94 
Atl.  392. 

So,  it  has  been  held  that  the  fact  that 
a  deceased  workman  was  engaged  in  fur- 
thering interstate  commerce  at  the  time 
of  his  death  does  not  prevent  his  de- 
pendents from  recovering  compensation 
under  the  New  Jersey  act.  West  Jersey 
Trust  Co.  v.  Philadelphia  &  R.  R.  Co. 
(1915)  —  N.  J.  L.  — ,  95  Atl.  753. 

In  neither  of  the  above  cases  is  it 
shown  whether  the  injury  was  caused  by 
the  negligence  of  the  employer  or  not. 

The   Federal   employers'   liability   act 


464 


WORKMEN'S  COMPENSATION. 


does  not  prevent  the  operation  of  a  state 
compensation  act  in  a  case  in  which  no 
claim  of  negligence  on  the  part  of  the 
employers  could  be  made.  Hammill  v. 
Pennsylvania  R.  Co.  (1915)  —  N.  J.  L. 
— ,  94  Atl.  313.  The  court  said :  "The 
Federal  and  state  acts  are  not  in  pari 
materia.  The  one  is  an  act  creating  a 
liability  to  the  employee  as  in  tort,  based 
upon  common-law  negligence,  or  the  fail- 
ure to  comply  with  some  statutory  pro- 
vision for  the  safety  of  the  employee; 
the  other,  so  far  as  its  §  2  is  concerned, 
is  a  compensation  act  purely  contractual 
in  character,  and  requiring  compensa- 
tion for  injury  or  death  to  be  made  as 
an  incident  of  the  mere  relation,  and 
quite  irrespective  of  any  question  of 
negligence  on  the  part  of  the  employer. 
It  was  manifestly  intended,  among  other 
things,  to  give  relief  in  just  such  cases 
as  the  present  one,  where  no  claim  of 
negligence  on  the  part  of  the  employer 
could  reasonably  be  made.  As  to  this 
class  of  cases,  at  least,  we  deem  the 
Federal  act  not  to  be  exclusive.  The 
authorities  cited  by  prosecutor  will  be 
found  to  involve  in  each  case  a  conflict 
between  the  Federal  act  and  a  state  act 
imposing  a  liability  as  in  tort  for  a 
breach  of  a  statutory  or  common-law 
duty." 

The  New  York  court  of  appeals  has 
also  held  that  the  state  act  was  appli- 
cable to  injuries  to  employees  o:"  inter- 
state carriers  by  rail,  although  such 
employees  were  themselves  engaged  in 
furthering  interstate  commerce,  if  the 
injuries  were  not  received  because  of  the 
negligence  of  the  carrier.  Winfield  v. 
New  York  C.  &  H.  R.  R.  Co.  (1915)  216 
N.  Y.  284,  110  N.  E.  614,  affirming  168 
App.  Div.  351,  153  N.  Y.  Supp.  499. 
After  pointing  out  that  the  Federal  act 
was  based  solely  upon  negligence,  and 
that  under  the  state  act  the  negligence 
of  the  employer  was  immaterial,  the 
court  said:  "We  think  it  is  evident, 
also,  that  Congress .  has  recognized  the 
difference  between  these  two  kinds  of 
statutes.  In  enacting  the  Federal  em- 
ployers' liability  act  it  intended  to  oc- 
cupy and  exclusively  pre-empt  the  field 
in  which  the  liability  of  certain  em- 
ployers engaged  in  interstate  commerce 
to  their  employees  is  prescribed  when 
the  latter  were  injured  as  the  result  of 
negligence.  It  did  not  intend  to  enter 
upon  the  field  of  compensation  for  in- 
dustrial accidents  which  were  not  the 
result  of  negligence,  but  left  that  field 
open  for  occupancy  by  the  state  until 
such  time  as  it  should  assume  to  legis- 
late upon  this  subject.  The  view  that 
Congress  intended  to  observe  the  distinc- 
L.R.A.1916A. 


tion  between  the  two  kinds  of  statutes 
referred  to  is  fortified  by  the  fact  that 
it  has  passed  a  workmen's  compensation 
law  exclusively  applicable  to  Federal 
employees,  in  which  liability  is  not  made 
to  depend  either  upon  fault  or  contract 
(35  Stat.  at  L.  556-558,  chap.  236,  Comp. 
Stat.  1913,  §§  8923-8929),  whereas,  as  to 
certain  private  employments,  it  has  regu- 
lated the  subject  only  in  those  cases 
where  the  employee  is  injured  as  the  re- 
sult of  negligence  (35  Stat.  at  L.  65, 
chap.  149).  The  workmen's  compensa- 
tion statute  of  this  state  was  not  in  any 
way  designed  to  conflict  with  the  au- 
thority of  Congress  over  interstate  com- 
merce. As  was  said  by  this  court  in 
Jensen  v.  Southern  P.  Co.  ante,  403,  'Its 
obvious  purposes  was  to  guard  against 
a  construction  violative  of  the  Constitu- 
tion of  the  United  States.' " 

An  employee  of  a  railroad  company 
located  and  operated  within  the  state, 
who  was  at  work  on  the  repair  of  a  car, 
is  under  the  protection  of  the  state  com- 
pensation act,  and  not  under  the  employ- 
ers' liability  act,  since  he  was  not  en- 
gaged in  furthering  interstate  commerce 
at  the  time  of  the  injury,  although  the 
car  had  been  used  in  both  interstate  and 
intrastate  commerce.  Okrzsezs  v.  Le- 
high  Valley  R.  Co.  (1915)  —  App.  Div. 
—  155  N.  Y.  Supp.  919.  It  should  be 
stated  that  no  attempt  has  been  made  to 
gather  the  cases  which  merely  determine 
whether  or  not  an  employee  was  at  a 
certain  time  engaged  in  interstate  com- 
merce, although  the  indirect  purpose  of 
such  a  determination  was  to  decide 
whether  the  Federal  or  the  state  act  ap- 
plied. 

The  state  compensation  act  does  not 
limit  in  any  way  the  amount  of  recovery 
by  an  injured  employee  who  sues  under 
the  Federal  employers'  liability  act. 
Grybowski  v.  Erie  R.  Co.  (1915)  —  N.  J. 
L.  — ,  95  Atl.  764. 

There  has  been  no  authoritative  rul- 
ing by  the  United  States  Supreme  Court 
upon  this  question.  It  would  seem,  how- 
ever, that  the  decision  in  STALEY  v.  ILLI- 
NOIS C.  R.  Co.  is  more  reasonable  than 
the  position  taken  by  the  New  York 
court  in  the  Winfield  Case,  supra.  The 
United  States  Supreme  Court  had  said 
in  a  comparatively  large  number  of  de- 
cisions that,  Congress  having  acted  up- 
on the  relationship  of  employers  and 
employees  in  the  case  of  interstate  car- 
riers by  rail,  all  state  legislation  is 
superseded.  It  is  true  that  the  Federal 
act  furnishes  a  remedy  only  where  the 
carrier  has  been  negligent,  and  that  the 
Supreme  Court  has  decided  that  the  Fed- 
eral act  superseded  the  state  acts  only 


LIMITATION  BY  FEDERAL  LAWS. 


LI]  465 


in  cases  where  the  state  acts  attempted 
to  impose  a  liability  for  negligence. 

One  of  the  main  grounds  for  uphold- 
ing the  constitutionality  of  the  compul- 
sory statutes  is  that  they  cover  the  en- 
tire field  of  the  liability  of  employers 
for  injuries  to  employees,  and  that,  while 
they  impose  additional  burdens  on  some 
employers,  they  relieve  those  employers 
and  all  others  from  the  danger  of  suit 
for  damages.  However,  under  the  deci- 
sions of  the  New  York,  New  Jersey,  and 
Connecticut  courts,  an  interstate  carrier 
by  rail,  although  he  may  have  paid  his 
contribution  into  the  insurance  fund,  or 
become  insured  in  some  other  way,  is 
not  freed  from  other  liability,  but  is 


subject  to  a  suit  for  damages  in  case  the 
injury  has  happened  because  of  his  neg- 
ligence.    From  the  same  point  of  view 
j  the   employer  is  not  freed  from  other 
!  obligations  where  the  injury  was  of  such 
(  a  character  that  his  property  may  be 
[  proceeded  against  in  admiralty.     Thus, 
j  if    the    above    named    courts    are    cor- 
rect   in    saying    that    the    compensation 
laws    apply    notwithstanding    the    em- 
ployee is  within  the  provisions  of  the 
Federal   employers'   liability   act,   or  if 
the  case  is  one  in  which  admiralty  has 
jurisdiction,  it  would  seem  that  one  of 
the  strongest  grounds  for  upholding  the 
constitutionality  of  the  statutes  is  re- 
moved. W.  M.  G. 


WISCONSIN  SUPREME  COURT. 

CITY  OF  MILWAUKEE,  Appt., 

v. 
HENRY  MILLER  et  al.,  Respts. 

(154  Wis.  652,  144  N.  W.  188.) 

Master  and  servant  —  workmen's  com- 
pensation —  burden  on  consumer. 

1.  An  employee,  in  the  course  of  his  serv- 
ice,   received    an    injury    to    a    great    toe. 
Without  notice  to  the  employer  of  his  need- 
ing   medical    and    surgical    treatment,    and 
desiring  to  have  such  employer  furnish  the 
same,    the   employee    procured    such    treat- 
ment, lasting  ninety  days.     Notice  was  not 
given  the  employer  at  any  time,  except  that 
the  employee  claimed  compensation  for  his 
loss.     Thereafter    the  former   tendered  the 
latter  services  of  a  competent  physician  and 
surgeon,   but  the  latter   chose  to  continue 
to  be  treated  by  the  person  of  his  choice, 
who  was  assisted  by  the  employee's  niece. 
She  voluntarily,  and  without  promise  or  ex- 
pectation of  compensation,  acted  as  nurse. 
In   due   course  the   Industrial   Commission 
awarded  reparation  for  the  loss,  including  j 
$222,   for  medical  and  surgical  treatment, 
and  $32   for  services  of  the  nurse.     Prin- 
ciples of  §§  2394—1-2394—71,  Stats.  1911 

(workmen's  compensation  act),  apply  as 
follows:  By  the  logic  of  the  workmen's 
compensation  act  personal  injuries  to  em- 
ployees are  a  natural  element  in  the  cost  of 
production,  and  are  necessarily  paid  by  the 
consumers  of  the  things  produced. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  S. 
Same  —  burden  on  public. 

2.  The  workmen's  compensation  act  is  to 
minimize  personal  injury,  distress,  and  loss, 

Headnotes  by  MARSHALL,  J. 


Note.  —  For  annotation  on  the  workmen's 
compensation  acts,  see  post,  23. 
L.R.A.1916A.  30 


and  so  the  burden  upon  the  public  as  well 
as  on  the  person  injured,  recognizing  that 
such  loss  as  legitimately  enters  into  the  cost 
of  production  as  wages. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

Statute  —  construction  —  broad  inter- 
pretation. 

3.  In  construing  a  statute  which  is  re- 
ferable to  the  police  power,  and  was  origin- 
ated to  promote  the  common  welfare,  sup- 
posed  to   be   seriously   jeopardized   by   th« 
infirmities  of  an  existing  system,  the  con- 
ditions giving  rise  to  the   law,   the  faults 
to   be   remedied,   the  aspirations   evidently 
intended  to  be  embodied  in  the  enactment, 
and  the  effects  and  consequences  as  regards 
responding  to  the  prevailing  conception  of 
the  necessities  of  public  welfare,  should  be 
considered  and  the   enactment   given   such 
broad  and  liberal  meaning  as  can  be  fairly 
read   therefrom    so    far   as   required   to   ef- 
fectively eradicate  the  mischiefs  it  was  in- 
tended to  obviate. 

For  other  cases,  see  Statutes,  II.  a,  in  Dig. 
1-52  N.  S. 

Master  and  servant  —  workmen's  com- 
pensation —  cost  of  production. 

4.  Proper    administration    of    the    work- 
men's compensation   act  requires  apprecia- 
tion of  the  manifest  legislative  purpose  to 
abolish   the   common-law   system   regarding 
injuries  to  employees  as  unsuitable  to  mod- 
ern   conditions    and    conceptions    of    moral 
obligations,  and  erect  in  place  thereof  one 
based  on  the  highest  present  conception  of 
man's  humanity  to  man  and  obligations  to 
members  of  the  employee  class, — one  recog- 
nizing every  personal  loss  to  an  employee, 
not    self-inflicted,    as    necessarily    entering 
into  the  cost  of  production,  and  required  to 
be  liquidated  in  the  steps  ending  with  con- 
sumption. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8. 

Same  —  determination  of  public  bur- 
den. 

5.  In  dealing  with  a  personal  injury  claim 
under  the  workmen's  compensation  act,  the 


4G6   [2] 


WORKMEN'S  COMPENSATION. 


logic  and  makeweights  formerly  supposed 
to  justify  penalizing  employers  as  wrong- 
doers, to  the  ultimate  expense  of  consumers, 
should  not  be  allowed  to  play  any  part; 
but  the  directly  responsible  party  should 
be  regarded  as  standing  for  the  aggregate 
of  consumers  and  joining  with  the  injured 
person  in  submitting  to  the  sound  judgment 
of  impartial  administrators  the  question  of 
how  much,  under  all  the  circumstances,  by 
legislative  standards,  should  the  public  be 
burdened  as  a  reparation  to  such  person  or 
his  dependents  for  his  or  their  loss. 
For  other  cases,  see  Damages,  III.  i,  in  Dig. 

1-52  N.  8. 
Same  —  surgical  aid. 

6.  The  amount  allowed  for  reasonable  ex- 
penses  of   medical   and   surgical   treatment 
should  be  the  fair  value  of  the  service  as 
such, — neither  more  nor  less  because  of  the 
employer  being  liable  therefor. 

For  other  cases,  see  Damages,  HI.  i,  in  Dig. 

1-52  TV.  8. 
Evidence  —  burden  of  proof  —  value  of 

surgical  treatment. 

7.  The  burden  of  proof  to  establish  to  a 
reasonable   certainty  the   reasonableness   of 
charges  for  medical  and  surgical  treatment 
under   the   workmen's   compensation   act   is 
on  the  employee;  and,  in  case  of  the  proof 
being  insufficient,  the   claim   should  be  re- 
duced sufficiently  to  cure  the  infirmity. 
For  other  cases,  see  Evidence,  II.  m,  in  Dig. 

1-52  N.  8. 
Same  —  right  to  disregard. 

8.  The    reasonableness    of    an    employee's 
claimed    expenses    reasonably    incurred    for 
medical   and   surgical  treatment   being  dis- 
puted   by   credible   evidence,    and   not    sup- 
ported  other   than   by   opinion   evidence   of 
the  person  most  interested,  the  trial  tribu- 
nal   should   apply    ordinary   common    sense 
and   experience   to   the   matter, — not   being 
bound  or  necessarily  efficiently  influenced  by 
the   verification   by   such    interested   one, — 
and  fix  the  allowable  amount  at  such  sum 
as  appears  to  it  to  be  reasonable;  and  where 
the  claim  is  obviously  exorbitant,  should  not 
allow   it,  in   the   whole,   regardless   of  how 
strongly    supported    by    evidence   from   the 
mouth  of  the  interested  party. 

For  other  cases,  see  Evidence,  XII.  k,  in 
Dig.  1-52  N.  8. 

Master  and  servant  —  workmen's  com- 
pensation —  right  of  employer  to  se- 
lect physician. 

9.  The  right  of  the  employer  under  the 
workmen's  compensation  act  to  furnish  rea- 
sonably    necessary     medical     and     surgical 
treatment,   and  the  provision   creating  lia- 
bility  to  the   employee   for   reasonable   ex- 
pense incurred  by  him,  or  in  his  behalf,  in 
that  regard,  in  case  of  the  former  unreason- 
ably   neglecting   or   refusing    to    make    the 
proper  provision,  by  necessary  implication 
reserves  to  the  employer,  under  ordinary  cir- 
cumstances, reasonable  opportunity  to  exer- 
cise the  privilege,   and  renders  competency 
of  the  employee  to  obtain  such  treatment, 
or  for  the  same  to  be  obtained  in  his  behalf, 
at  the  expense  of  the  employer,  contingent 
L.R.A.1916A. 


upon    such    opportunity    having    been    ac- 
corded. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  time  to  exercise. 

10.  The  privilege  accorded  the  employer, 
as  stated,  requires,  as  an  incident,  reason- 
able time  to  exercise  it  after  notice  of  the 
need  therefor. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  ad  interim  treatment. 

11.  The    stated    rules    do    not    militate 
against  competency  of  an  injured  employee 
to   obtain   medical   and   surgical   treatment 
at  the  expense  of  his  employer  in  the  in- 
terim between  the  happening  of  the  injury 
and  time  for  notice  to  the  employer  of  the 
employee's  needs. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  2V.  8. 

Same  —  duration  of  employee's  privi- 
lege. 

12.  Competency   of   an   injured   employee 
to  procure  medical  and  surgical  treatment, 
or  for  such  to  be  procured  in  his  behalf,  at 
the  expense  of  the  employer,  under  the  work- 
men's compensation  act,  exists  for  the  rea- 
sonable time  after  the  injury  required  for 
such  employee  to  afford  the  employer  op- 
portunity  to   exercise   his   privilege;    it    is 
then    suspended   if   the   employer    exercises 
such  privilege,  but  revives  and  relates  back 
to  the  time  of  suspension,  if  necessary,  if 
the  employer  unreasonably  neglects  or  re- 
fuses to  exercise  such  privilege. 

For  other  cases,  see  Master  and  Servant,  II. 
a,  1,  in  Dig.  1-52  N.  8. 

Same  —  interest  of  employer  —  conser- 
vation. 

13.  The  legislative  idea  in  the  workmen's 
compensation  act  is  that  an  employer  is  so 
specially  interested  in  his  injured  employee 
being  restored  as  soon  as  practicable,  as  to 
be   most   likely   to   provide   proper   medical 
and  surgical  treatment,  and  the  letter  and 
spirit  of   the   law   require   that   such   bene- 
ficial and  manifestly  economic  phase  of  the 
enactment  should  be  given  its  intended  dig- 
nity. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  duty  to  discover  injury. 

14.  The  law  does  not  cast  upon  employers 
the  duty  of  active  vigilance  to  discover  cases 
of  personal   injury  to  their  employees,  but 
casts  upon  the  latter  such  vigilance  as  they 
can   reasonably   exercise  to   bring   such   in- 
juries to  the  attention   of  employers,  with 
their  need  and  desire  for  medical  and  sur- 
gical treatment  to  be  provided. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  expenses  of  nurse. 

15.  Expense   for    service    of   a   nurse,   as 
such,  is  not  allowable  against  the  employer 
for  the  period  of  ninety  days  after  the  in- 
jury, or  at  all  during  such  period,  except 
as  a  part  of  reasonably  necessary  medical 


MILWAUKEE  v.  MILLER. 


[3]   467 


and  surgical  treatment  prove  to  be  such 
by  the  physician  and  surgeon  in  attendance. 
For  other  cases,  see  Damages,  III.  i,  in  Dig. 

1-52  AT.  8. 
Same  —  termination  of  allowance. 

16.  Expense   for   services  of   a   nurse,   as 
such,    after    the    first    ninety    days,    is    not 
chargeable  to  the  employer,  nor  at  all  there- 
after except  by  allowance  of  the  maximum 
percentage   of   disability   indemnity. 

For  other  cases,  see  Damages,  III.  i,  in  Dig. 

1-52  N.  8. 
Same  —  voluntary  aid  —  effect. 

17.  The  common  rule  in  the  law  of  neg- 
ligence that  the  wrongdoer  cannot  mitigate 
his  liability  by  taking  advantage  of  relief 
furnished  by  one's  wife,  family,  friends,  or 
otherwise,  has  no  application  to  cases  un- 
der the  workmen's  compensation  act.     That 
eliminates  all  penalizing  features  and  limits 
compensation   to  the   injured  person,   aside 
from   indemnity   disability,   to   expenses   or 
liabilities  actually  incurred. 

For  other  cases,  see  Damages,  HI.  i,  in  Dig. 

1-52  N.  8. 
Same  —  burden  on  product. 

18.  The   legislative  requirement  that  the 
employer   shall  bear  the  burden  of  reason- 
ably necessary  medical  and  surgical  treat- 
ment of  his   injured  employee  was  not  in- 
tended as  a  charity  to  one,  or  as  a  penalty 
as  to  the  other,  but  as  the  recognition  of 
the  economic  truth  that  such  expense  is  a 
legitimate   element   in   the   cost   of   produc- 
tion, and  should  be  placed  upon  the  product 
as  directly  as  practicable,  using  the  employ- 
er as  a  necessary  first  step  in  that  regard. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(October  28,  1913.) 

APPEAL  by  plaintiff  from  a  judgment  of 
the  Circuit  Court  for  Dane  County 
sustaining  an  award  of  the  Industrial  Com- 
mission to  defendant  Miller  for  a  personal 
injury  which  occurred  to  him  while  in  the 
performance  of  his  duties  as  an  employee  of 
the  plaintiff  city.  Modified  and  affirmed. 

Statement  by  Marshall,  J. : 

The  Industrial  Commission,  in  due  course, 
awarded  Henry  Miller,  under  the  provisions 
of  the  workmen's  compensation  act,  on  ac- 
count of  a  personal  injury  to  him  which 
occurred  while  he  was  in  the  performance  of 
his  duties  as  an  employee  of  the  city  of 
Milwaukee,  $222  for  physician's  services, 
$32  for  expense  incurred  for  services  of  a 
nurse,  $5  paid  out  for  bandages  and  sup- 
plies, and  $172.50  for  disability  indemnity. 
An  action  was  brought  in  the  circuit  court 
for  Dane  county  to  test  the  decision  as  to 
the  first  two  items,  resulting  in  the  award 
of  the  Commission  being  sustained. 

One  of  Miller's  great  toes  was  severely  in- 
jured by  a  road  roller.  The  member  was  so 
lacerated  and  the  bone  known  as  the  first 
L.R.A.1916A. 


digit  so  badly  crushed  that  amputation  be- 
came necessary.  The  wound  becoming  some- 
what infected,  recovery  was  slow  because 
thereof  and  the  man's  age  and  condition  of 
health.  He  resided  in  the  house  with  two 
relatives,  a  niece  and  her  mother.  The  for- 
mer acted  voluntarily  as  nurse,  and  without 
promise  or  expectation  of  compensation. 
Miller  did  not,  at  any  time,  notify  the  mu- 
nicipality of  his  needing  services  of  a  physi- 
cian or  nurse,  or  give  the  corporation  any 
opportunity  to  furnish  such  services.  He 
did  not  notify  it  of  his  injury  until  October 
21,  1912,  three  weeks  after  it  happened. 
The  notice  then  given  was  in  the  ordinary 
form  for  claiming  compensation  for  his  loss. 
He  called  Dr.  Bradstad  to  treat  him  on  the 
day  of  the  injury.  The  amputation  took 
place  eleven  days  thereafter.  November 
17th,  after  the  city  received  the  nptice  afore- 
said, it  voluntarily  tendered  Miller  the 
services  of  Dr.  Carroll,  a  competent  physi- 
cian. Notwithstanding  such  tender  Miller 
continued  to  employ  Dr.  Bradstad.  From 
the  time  of  such  tender  to  the  end  of  Dr. 
Bradstad's  period  of  service,  Miller  knew 
that  the  city  was  ready  at  any  time  to 
furnish  him  with  the  services  of  a  physician. 
He  unnecessarily  retained  Dr.  Bradstad  for 
the  full  period  of  ninety  days.  The  latter, 
in  his  bill  as  allowed  by  the  Commission, 
charged  for  a  visit  to  the  patient  and  dress- 
ing of  his  injured  member  on  some  135  oc- 
casions during  ninety  days,  as  indicated  by 
the  following  copy  of  such  bill: 

October    1, 1912.    Surgical  dressing  and 

Amp.  Redundant  Tissue  $  2  50 

2,    "     Dressing    1 50 

2,    "  "  1 50 

2,    "  "  1 50 

4,    "  1 50 

4,  "  "  1 50 

5,  "  "  1  50 

6,  "  "  1  50 

7,  "  "  1 5O 

8,  "  1  50 

9,  "  "  1  50 

10,  "  1  50 

11,  "  "  150 

11,    "     Amputation    of    toe    .  .     30  00 

11,  "     Anaesthetic     5  00 

12,  "     Call     1  50 

12,  '       "        1 50 

13,  '        "         1  50 

14,  '       "         1 50 

15,  '     Dressing     1 50 

15,  '  "  1 50 

16,  '  "  1 50 

16,  '  "  1 50 

17,  '  "  1  50 

17,  '  "  1  50 

18,  "  "  1 50 

18,  "  "  1  50 

19,  "  '  1 50 

19,  "  '  1  50 

20,  "  '  1  50 

20,  "  1  50 

21,  "  '  1  50 

21,  '  1  50 

22,  '  '  1  50 

22,  '  '  1  50 

23,  '  1 50 

23,  '  '  1 50 

24,  '  '  1  50 

24,  '  '  1  50 

25,  '  '  1  50- 

25,     '  ' 150 


468   [4] 


WORKMEN'S  COMPENSATION. 


October  26,  1912 

.  Dressing  $1 

50 

"    26,  " 

50 

27,  " 

"               1 

50 

27,  " 

1 

50 

28,  " 

1 

50 

28,  " 

1 

50 

"    29  " 

«       l 

50 

"    29  " 

1 

50 

"    30,  ' 

1 

50 

"    30 

"               1 

50 

"    31   ' 

«       1 

50 

"    31,  ' 

"                1 

50 

"    i 

50 

"    1»  ' 

1 

50 

"     2,   ' 

-,   i 

50 

"     2,  " 

1 

50 

"     3,  " 

1 

50 

3,  ' 

1 

50 

"     4,   • 

1 

50 

«.     4 

1 

50 

•"     5,   ' 

1 

50 

"     5,   ' 

1 

50 

•*'    6   ' 

'    i 

50 

"     6.  ' 

1 

50 

1 

50 

•"     7,   ' 

1 

50 

"    8 

1  .   i 

50 

"    8 

1 

50 

"    9,  ' 

1    i 

50 

•"     9,  ' 

1 

50 

10,  ' 

1 

50 

10  " 

1 

50 

"    11,  " 

1 

50 

"    11,  " 

1    i 

50 

12,  " 

1 

50 

12,  " 

1 

50 

"    13,  " 

1 

50 

"    13,  " 

1 

50 

13,  " 

1 

50 

13,  " 

14,   ' 

11  :30  P.  M.  Temp.  103   1 
Dressing   1 

50 
50 

"    14   ' 

50 

15,   ' 

1 

50 

"    15,   ' 

1 

50 

"    16,  ' 

1 

50 

"    16,  " 

'    1 

50 

..    17  .. 

'    i 

50 

"    17,  " 

1 

50 

17,  " 
18,  " 

Dr.  Carroll  called  1 
Dressing   1 

50 
50 

•"    18,  " 

50 

19,  " 

1 

50 

"    19,  " 

1 

50 

"    20  " 

"    1 

50 

"    20,  " 

"    1 

50 

"    21,  " 

1 

50 

"    21   " 

"    i 

50 

"    22   " 

'    1 

50 

•"    22  " 

1 

50 

23,  " 

1 

50 

•"    24,  " 

1 

50 

'    24,   ' 

'    i 

50 

'    25 

1 

50 

'    26,  ' 

1 

50 

'    26,  ' 

1 

50 

'    27   ' 

1 

50 

"    28 

1 

50 

"    29,   ' 

1 

50 

"    29,   ' 

1 

50 

30,  ' 

1 

50 

1 

50 

"     2,   ' 

'    1 

50 

"    3,  ' 

1 

50 

"     4,  ' 

1 

50 

"    6,  ' 

1 

50 

"    6   ' 

1 

50 

"     7 

1 

50 

"    8,  ' 

1 

50 

•"    10   ' 

1    1 

50 

"    12   ' 

1 

50 

"    14 

1 

50 

•"    17   ' 

'     i 

50 

"    19   ' 

1    1 

50 

•"    21   ' 

1 

50 

...    24   ' 

1 

50 

•"    26   ' 

'    1 

50 

31.   ' 

1 

50 

$222  00 

November  30th,  after  the  tender  of  services 
•of  Dr.  Carroll,  the  city  caused  written  notice 
to  be  served  on  Miller  that  it  would  not  pay 
for  services  of  any  physician  except  those 
L.R.A.1916A. 


rendered  by  its  own  selection.  Dr.  Brad- 
stad  verified  the  reasonableness  of  his  bill. 
Dr.  Carroll,  under  oath,  condemned  it,  say- 
ing that  $50  to  $75  was  ample  for  such  a 
case.  The  Commission  regarded  Dr.  Brad- 
stad's  charges  quite  large,  but  accepted  his 
evidence  as  sufficient  to  sustain  his  claim, 
notwithstanding  the  evidence  of  Dr.  Carroll, 
since,  as  it  viewed  the  matter,  the  injury 
was  quite  serious  and  Bradstad,  because  of 
greater  experience  than  Dr.  Carroll,  was  the 
best  judge  of  the  matter. 

Messrs.  Daniel  \V.  Hoan  and  W.  H. 
Timlin,  Jr.,  for  appellant: 

There  can  be  no  recovery  for  services 
rendered  voluntarily,  and  with  no  expecta- 
tion at  the  time  of  rendition  that  they  will 
be  compensated;  and  this  is  true  whether 
the  services  were  or  were  not  beneficial. 

15  Am.  &  Eng.  Enc.  Law,  1079;  Ellis 
v.  Cary,  74  Wis.  176,  4  L.R.A.  55,  17  Am. 
St.  Rep.  125,  42  N.  W.  252;  Wells  v. 
Perkins,  43  Wis.  160 ;  Bostwick  v.  Bostwick, 
71  Wis.  273,  37  N.  W.  405. 

Messrs.  W.  C.  Owen,  Attorney  General, 
and  Byron  H.  Stebbins,  Assistant  Attor- 
ney General,  for  respondents: 

The  award  of  the  Industrial  Commission 
should  not  be  disturbed  if  the  testimony 
shows  that  "there  is  a  substantial  basis  for 
the  decision." 

Northwestern  Iron  Co.  v.  Industrial  Com- 
mission, 154  Wis.  97,  post,  366,  142  N.  W. 
271,  Ann.  Cas.  1915B,  877 ;  Minneapolis,  St. 
P.  &  S.  Ste.  M.  R.  Co.  v.  Railroad  Com- 
mission, 136  Wis.  146,  17  L.R.A.  (N.S.)  821, 
116  N.  W.  905. 

An  employer  failing  to  provide  in  some 
way  for  medical  treatment  "neglects"  to 
provide  it  in  the  sense  that  he  fails  or  omits 
to  do  so.  "To  neglect  to  do  a  thing  means  to 
omit  to  do  it — not  to  do  it." 

Rankin  v.  Sisters  of  Mercy,  82  Cal.  88,  22 
Pac.  1134;  Kimball  v.  Rowland,  6  Gray, 
224;  Robertson  v.  Northern  R.  Co.  63  N. 
H.  544,  3  Atl.  621 ;  Donahue  v.  Gunter,  151 
Wis.  125,  138  N.  W.  51. 

Nursing  is  included  under  the  head  of 
"medical  and  surgical  treatment." 

Scott  v.  Winneshiek  Co.  52  Iowa,  579,  3 
N.  W.  626. 

The  reasonable  value  of  nursing  gratuit- 
ously done  by  a  member  of  one's  family  may 
be  included  in  compensation  as  part  of  the 
"reasonable  expense  incurred"  by  the  in- 
jured employed  in  providing  medical  and 
surgical  treatment. 

13  Cyc.  63,  64;  8  Am.  &  Eng.  Enc.  Law, 
2d  ed.  645,  646 ;  Crouse  v.  Chicago  &  N.  W. 
R.  Co.  102  Wis.  196,  78  N.  W.  446,  778; 
Johnson  v.  St.  Paul,  &  W.  Coal  Co.  131  Wis. 
627,  111  N.  W.  722;  Hulehan  v.  Green  Bay, 
W  &  St.  P.  R.  Co.  68  Wis.  520,  32  N.  W. 


MILWAUKEE  v.  MILLER. 


[5]  469 


529;  Brosnan  v.  Sweetser,  127  Ind.  1,  26  N. 
E.  555. 

The  burden  of  proving  that  services  of  a 
nurse  were  rendered  gratuitously  is  on  the 
party  seeking  to  escape  payment  therefor. 

Link  v.  Chicago  &  N.  W.  R.  Co.  80  Wis. 
304,  50  N.  W.  335;  Wojahn  v.  National 
Union  Bank,  144  Wis.  646,  129  N.  W.  1068; 
40  Cyc.  2816;  Williams  v.  Williams,  114 
Wis.  79,  89  N.  W.  835;  Taylor  v.  Thieman, 
132  Wis.  38,  122  Am.  St.  Rep.  943,  111  N. 
W.  229;  Broderick  v.  Broderick,  28  W.  Va. 
378;  Diehl's  Appeal,  2  Legal  Gaz.  113; 
Styles  v.  Decatur,  131  Mich.  443,  91  N.  W. 
622;  Hay  v.  Walker,  65  Mo.  17;  Christian- 
son  v.  McDermott,  123  Mo.  App.  448,  100  S. 
W.  63;  Neale  v.  Engle,  4  Sadler  (Pa.)  1,  7 
Atl.  60. 

The  nurse's  intention  in  the  matter  is  im- 
material for  the  further  reason  that  she  is  a 
minor,  so  that  even  a  definite  agreement  to 
accept  less  than  the  reasonable  value  of  her 
services  (or  nothing)  was  not  binding  on 
her  or  on  her  mother,  the  latter  being  en- 
titled to  her  daughter's  earnings. 

29  Cyc.  1624;  Hammond  v.  Corbett,  50 
N.  H.  501,  9  Am.  Rep.  288;  Gale  v.  Parrot, 
1  N.  H.  28;  James  v.  LeRoy,  6  Johns.  274; 
Cook  v.  Husted,  12  Johns.  188;  Weeks  v. 
Holmes,  12  Gush.  215 ;  Sherlock  v.  Kimmell, 
75  Mo.  77. 

An  infant's  contract,  if  prejudicial  to  his 
interests,  is  not  binding  on  him  or  on  his 
parents. 

Davies  v.  Turton,  13  Wis.  185 ;  Mountain 
v.  Fisher,  22  Wis.  93. 

Marshall,  J.,  delivered  the  opinion  of 
the  court: 

This  appeal  presents  a  very  important 
question  of  fact  and  several  of  statutory 
construction.  Their  significance  is  not 
measured,  merely,  by  effect  of  their  solution 
in  the  particular  instance.  Such  solution 
will  probably  materially  affect  many 
present,  and,  necessarily,  many  future  situa- 
tions with  which  the  Industrial  Commission 
will  have  to  deal.  It  may  affect  the  integri- 
ty of  the  law  itself  as  regards  whether  the 
beneficent  purposes  for  which  it  was  origi- 
nated shall  be  realized. 

A  law,  however  much  needed  for  the  pro- 
motion of  the  public  welfare,  and  however 
wisely  framed,  may  be  made  so  unsatis- 
factory by  the  spirit  of  it  not  sufficiently 
pervading  its  administration,  as  to  large- 
ly defeat  its  purpose  and  create  danger  of  its 
abrogation  and  a  return  to  the  distressing 
situations  which  gave  rise  to  the  effort  for 
relief.  Any  such  result  in  the  particular 
instance  would  be  such  a  public  calamity 
that  everyone  in  authority  having  to  do 
with  determining  the  precise  scope  of  the 
law,  in  letter  and  spirit,  and  applying  it, 
L.R.A.1916A. 


should  be  alert,  at  all  times,  to  the  im- 
portance of  not  affording  any  reason  to  at- 
tempt such  result,  and  of  making  the  wis- 
dom embodied  in  the  legislation  so  sig- 
nificant that  no  considerate  person  will, 
indulge  the  thought  of  even  a  partial  back- 
ward step  toward  the  old  system,  character- 
ized by  incalculable  waste,  to  the  detriment 
of  every  consumer  of  the  products  of  hu- 
man energy;  by  distressing  unequal  distri- 
bution of  misfortunes  incident  to  necessary 
industrial  pursuits,  particularly  misfortunes 
to  employees  by  personal  injury  losses;  by 
a  lowering  tendency  of  moral  standard  in 
the  making  and  enforcing  claims  for  such 
losses,  and  by  perversion  of  human  per- 
ceptions of  individual  responsibility  in  such 
cases.  The  law  is  a  long  step  towards  an 
ideal  system  requiring  every  consumer  of 
any  product  of  human  industry,  as  directly 
as  practicable,  to  pay  his  ratable  proportion! 
of  the  fair  money  cost  of  those  things  which 
he  necessarily,  or  reasonably,  destroys  in 
conserving  his  life  and  welfare, — personal- 
injury  losses,  not  intentionally  incurred, — 
losses  whether  through  the  fault  of  the  em- 
ployer or  employee,  or  without  fault  of 
either,  being  considered  as  legitimately  an 
element  of  such  fair  money  cost  as  expendi- 
tures for  raw  material,  for  machinery  or 
wages. 

The  foregoing  seems  legitimate  as  indf- 
cating  the  atmosphere,  so  to  speak,  in  which< 
the  questions  here  presented,  especially  those- 
of  statutory  construction,  should  be  ex- 
amined. The  conditions  giving  rise  to  ai 
law,  the  faults  to  be  remedied,  the  aspira- 
tions evidently  intended  to  be  efficiently  em- 
bodied in  the  enactment,  and  the  effects  and 
consequences  as  regards  responding  to  the 
prevailing  conceptions  of  the  necessities  of 
public  welfare,  play  an  important  part  in. 
shaping  the  proper  administration  of  the 
legislation.  In  the  aggregate,  they  some- 
times shed  very  efficient  light  in  aid  of  clear- 
ing up  obscurities  as  to  the  legislative  in- 
tent. The  administrative  commission  and' 
the  courts  should  fully  appreciate  that  and! 
be  imbued  with  and  guided  by  the  manifest 
intent  of  the  law  to  eradicate,  utterly,  the 
injustice  to  employers  and  employees,  and 
the  public  as  well,  of  the  old  system,  and  to 
substitute  in  its  place  an  entirely  new  one 
based  on  the  highest  conception  of  man's 
humanity  to  man  and  obligation  to  industry 
upon  which  all  depend;  recognizing  the  ag- 
gregate of  its  attending  accidents  as  an  ele- 
ment of  cost  to  be  liquidated  and  balanced 
in  money  in  the  course  of  consumption, — a 
system  dealing  with  employees,  employers, 
and  the  public  as  necessarily  mutual  par- 
ticipants in  bearing  the  burdens  of  such  ac- 
cidents, displacing  the  one  dealing  only  with 
the  class  of  injuries  happening  through  in-- 


470   [6] 


WORKMEN'S  COMPENSATION. 


advertent  failure,  without  real  moral  turpi- 
tude, to  exercise  average  human  care,  and 
placing  employee  and  employer,  whose  inter- 
ests are  economically  the  same,  in  the  false 
position  of  adversaries,  to  the  misfortune  of 
both  and  the  public,  intensified  by  oppor- 
tunity for  those  concerned  as  judicial  as- 
sistants to  profit  by  such  misfortunes.  Most 
lamentable  it  will  be,  if  this  new  system — 
so  freighted  with  hopes  for  the  minimizing 
of  human  burdens  and  their  equitable  dis- 
tribution— shall  not  endure  and  be  perfected 
to  the  best  that  human  wisdom  can  attain. 

In  the  light  of  the  foregoing  it  would 
seem  that  such  a  situation  as  the  one  pre- 
sented by  the  claim  for  physician's  services 
in  this  case  should  be  viewed  with  eyes 
blinded,  so  to  speak,  to  the  competency  of 
the  party  claimed  of  to  pay,  and  without  a 
thought  that  the  latter  can  legitimately  be 
mulcted  as  a  wrongdoer,  in  the  moral  sense, 
or  should  be  required  to  pay  more  or  less 
according  to  wealth,  situation,  or  status. 
Results  should  not  afford  any  good  reason 
for  apprehending  that  those  influences 
popularly  supposed  to  formerly  have  unduly 
•characterized  recoveries  by  jury  interference 
rstill  play  an  efficient  part.  The  directly 
responsible  party  should  be  regarded  as 
^voluntarily  joining  with  the  injured  person 
in  submitting  to  the  sound  judgment  of  im- 
partial men  the  question  of  how  much,  under 
the  circumstances,  by  legislative  standards, 
should  be  rendered  by  one  to  the  other  as 
reparation  for  his  loss. 

Manifestly,  in  case  of  a  claim  such  as  the 
one  in  question,  the  amount  allowed  should 
not  be  more  merely  because  of  a  munici- 
pality being  directly  responsible  than  in 
case  of  the  person  treated  having  to  bear  the 
burden.  What  services  were  reasonably 
necessary  and  what  is  a  fair  compensation 
therefor  are  the  only  legitimate  inquiries. 
In  case  of  grave  doubts  as  to  the  amount, 
and  the  truth  of  the  matter  resting,  as  here, 
solely  on  the  word  of  the  interested  party, 
opposed  by  the  evidence  of  another  compe- 
tent to  testify,  and  of  little  or  no  interest 
in  the  result,  there  should  be  much  hesi- 
tation, and  generally  refusal,  to  resolve  it 
wholly  against  the  party  from  whom  the  re- 
covery is  sought.  The  burden  of  proof 
should  be  regarded  as  on  the  claimant  to 
establish  his  claim  with  reasonable  certain- 
ty, and  circumstances  or  evidence  impairing 
such  certainty  should  incline  triers  to  re- 
duce the  amount  claimed  sufficiently  to 
place  it  safely  within  the  boundaries  of 
reason. 

Viewing  Dr.  Bradstad's  claim  as  above  in- 
dicated, it  so  shocks  our  common  sense  and 
standard  of  what  is  reasonable  and  fair  as  to 
leave  no  room  for  approving  the  Commis- 
sion's finding,  though  confirmed  by  the 
L.R.A.1916A. 


circuit  court.  We  are  constrained  to  think 
that  the  matter  was  not  viewed,  either  in 
the  first  instance  or  on  review  in  the  circuit 
court,  from  precisely  the  angle  above  indi- 
cated. It  seems  preposterous  that  an  in- 
jury to  a  great  toe,  even  of  such  severe 
nature  as  to  require  amputation  and  care- 
ful attention  for  some  days  to  eradicate  or 
prevent  infection  and  create  proper  con- 
ditions for  recovery,  could  reasonably  re- 
quire over  130  visits  and  dressings  during 
a  period  of  ninety  days,  notwithstanding  the 
presence  of  an  attendant  competent  and 
willing  to  carry  out  the  physician's  direc- 
tions as  to  caring  for  the  injured  member. 
In  looking  over  the  Bradstad  claim  as  it 
appears  in  the  statement  of  facts,  one  can 
but  marvel  that  it  was  exhibited  to  such  a 
board  as  the  Industrial  Commission  for  ap- 
proval, especially  with  any  thought  of  its 
being  allowed  in  full. 

It  will  be  noted  that  there  were  two 
visits  and  two  dressings  nearly  every  day 
for  the  first  sixty  days.  That  most  of  such 
service  could  have  been  efficiently  performed 
by  any  fairly  intelligent  attendant  under  the 
directions  of  the  physician,  he  being  easily 
within  reach  in  case  of  there  being  any  spe- 
cial reason  for  his  presence,  needs  no 
evidence  other  than  our  own  common 
sense  and  common  experience  in  life.  It 
must  be  remembered  that  trial  tribunals 
are  not,  necessarily,  bound  by  the  testimony 
of  experts  merely  because  of  their  special 
knowledge.  One  who,  by  reason  of  such 
knowledge,  is  competent  to  give  opinion 
evidence,  may  deal  in  such  exaggerations, 
especially  when  they  favor  his  selfish  inter- 
ests, as  in  this  case,  as  to  render  his  evi- 
dence of  little  or  no  value,  even  when  un- 
opposed by  evidence  from  the  mouth  of  any 
other  witness.  Baxter  v.  Chicago  &  N.  W. 
R.  Co.  104  Wis.  307,  331,  80  N.  W.  644,  6 
Am.  Neg.  Rep.  746;  Bucher  v.  Wisconsin  C. 
R.  Co.  139  Wis.  597,  120  N.  W.  518.  It  has 
been  often  said  that  that  opinion  evidence 
is  not  conclusive  in  any  case;  that  if  it  is 
not  within  the  scope  of  reason  and  common 
sense  it  should  not  be  regarded  at  all. 
Triers  circumstanced  like  the  Industrial 
Commission  have  a  right  and  duty  to  apply 
their  own  common  sense  and  experience  to 
such  a  situation  as  existed  here,  and  not  to 
allow  a  claim  which  appears  manifestly 
exorbitant  merely  because  verified  by  the 
person  to  be  benefited  by  its  allowance.  No 
more  should  have  been  allowed  in  this  case 
than  would  appear  to  a  reasonable  certainty 
fair  in  case  of  the  injured  man  being  re- 
sponsible for  payment  without  any  right  to 
reimbursement. 

What  has  been  said  would  require  a  large 
reduction  of  the  allowance  for  services  of 
the  physician,  if  the  solution  of  questions 


MILWAUKEE  v.  MILLER. 


[7]  471 


yet  to  be  considered  should  leave  any  room 
for  allowing  the  claim  at  all.  Notwithstand- 
ing such  solution  must  eliminate  the  Brad- 
stad  claim  entirely  from  the  case,  as  will 
be  seen,  it  has  seemed  that  we  ought  not  to 
decide  the  matter  without  passing  upon  the 
merits  of  the  decision  below,  and  not  to  let 
the  opportunity  pass  for  speaking  of  the 
requirements  of  the  law  as  to  the  manner  of 
dealing  with  such  claims, — affording  guid- 
ance for  administrative  efforts.  That  the 
Commission  has  labored  hard  to  respond  to 
the  duties  imposed  by  law,  and  has,  in  gen- 
eral, won  distinction  for  rapidly  and  satis- 
factorily disposing  of  a  multitude  of  cases, 
and  demonstrating  the  wisdom  of  the  new 
system,  may  be  fairly  conceded  without  mil- 
itating against  the  thought  that  judicial 
suggestions  in  the  interests  of  adminis- 
trative efficiency  will  be  welcomed. 

The  next  question  presented  involves  a 
very  important  feature  of  the  workmen's 
compensation  law.  Failure  to  preserve  the 
integrity  of  such  feature  and  to  give  effect 
thereto  in  letter  and  spirit  would  go  far 
toward  bringing  discredit  upon  the  new 
system  by  appearance  that  some  of  the  sig- 
nificant infirmities  and  abuses  incident  to 
the  old  system  are  incident  as  well  to  the 
new. 

Formerly  there  was  a  somewhat  popular 
notion,  and  by  no  means  not  without  good 
ground  therefor,  that  misfortunes  of  injured 
employees  were  often  exaggerated  and  made 
unnecessarily  burdensome  to  their  employ- 
ers by  such  employees,  their  lawyers  and 
doctors  combining  to  that  end,  and  generally 
to  the  great  detriment  of  employees  and  em- 
ployers, and  the  public  as  well.  It  may 
well  be  that  such  instances  were  exception- 
al rather  than  common,  though  there  was 
enough  of  basis  for  such  popular  idea  to 
regrettably  cast  discredit  upon  the  learned 
professions.  To  rescue  such  professions 
from  such  discredit  and  remove  opportunity 
for  selfishly  exploiting  the  misfortunes  of 
employees  at  the  expense  of  their  employers 
and  the  public,  careful  provision  was  made 
to  protect  claimants  from  court  costs  and 
attorney's  charges  and  employers  from 
false  claims  and  fraudulent  or  needless  pro- 
longation of  disability,  while  recognizing 
that  the  expenses  incident  to  surgical  and 
medical  attention  to  an  injured  person  are 
a  necessary  part  of  his  reparable  loss.  To 
that  end  it  was  provided  by  subdivision  1, 
§  2394 — 9  of  the  compensation  act  that 
"where  liability  for  compensation  under  this 
act  exists  the  same  shall  be  as  provided  in 
the  following  schedule :  "  ( 1 )  Such  medical 
and  surgical  treatment,  medicines,  medical 
and  surgical  supplies,  crutches,  and  appa- 
ratus, as  may  be  reasonably  required  at  the 
time  of  the  injury  and  thereafter  during  the 
L.R.A.1916A. 


disability,  but  not  exceeding  ninety  days,  to 
cure  and  relieve  from  the  effects  of  the  in- 
jury, the  same  to  be  provided  by  the  em- 
ployer; and  in  case  of  his  neglect  or  refusal 
seasonably  to  do  so,  the  employer  to  be 
liable  for  the  reasonable  expense  incurred 
by  or  on  behalf  of  the  employee  in  provid- 
ing the  same." 

The  purpose  of  that  provision  is  mani- 
fest ;  but  if  it  were  otherwise  the  report  of 
the  legislative  committee  which  drafted  the 
law  would  remove  all  possible  doubt.  In 
that,  as  indicated  by  appellant's  counsel,  we 
find  the  following:  "The  employer  must 
provide  medical  and  surgical  treatment, 
medicine,  etc.,  for  ninety  days.  This  pro- 
vision is  made  for  two  reasons:  First:  As 
a  rule,  an  employer  is  more  competent  to 
judge  the  efficiency  of  the  doctor  employed 
and  to  provide  efficient  medical  and  surgical 
treatment.  Second:  It  is  to  the  interest 
of  the  employer  to  furnish  the  very  best 
medical  and  surgical  treatment,  so  as  to 
minimize  the  result  of  the  injury  and  to 
secure  as  early  a  recovery  as  possible.  The 
more  serious  the  result  of  the  injury,  the 
more  the  employer  must  pay.  Also  by  this 
means  he  obtains  a  complete  knowledge  of 
the  exact  condition  of  the  injured  em- 
ployee." 

Thus,  the  burden  for  all  reasonable  medi- 
cal aid  and  surgical  treatment,  medicine, 
etc.,  is  cast  on  the  employer,  limited  as  to 
time,  with  the  very  wise  and  necessary  safe- 
guard against  imposition  that  the  choice  of 
the  medical  or  surgical  attendant  shall  be 
left  with  him,  and  that,  if  the  injured  per- 
son unnecessarily  chooses  his  own  physician, 
he  will  do  so  at  the  peril  of  having  to  bear 
the  burden  of  the  expense.  That  is  a  very 
valuable  protection  to  injured  persons  as 
well  as  to  employers.  The  natural  effect  of 
a  firm  enforcement  of  it  will  be  to  expedite 
the  return  of  honest  claimants  to  the  walks 
of  industry  and  prevent  them  from  having 
their  misfortunes  exploited  for  other's  bene- 
fit. If  the  advantages  to  be  gained  by  a 
firm  administration  of  such  provision  would 
be  greater  on  one  side  than  on  the  other,  it 
is  the  side  of  the  employees.  Therefore,  in 
case  of  a  personal  injury  to  an  employee  in 
the  line  of  his  duty,  the  law  should  be  con- 
strued and  applied  so  as  to  secure  to  his 
employer  reasonable  opportunity  to  con- 
serve the  mutual  interests  of  the  two  parties 
to  the  misfortune  by  supplying  the  medical 
and  surgical  needs  of  the  injured. 

The  logic  of  the  foregoing  is  plainly  this: 
It  is  the  duty  of  an  injured  employee  who 
needs,  or  supposes  himself  to  need,  medical 
and  surgical  treatment,  to  give  his  employ- 
er reasonable  notice  thereof.  The  privilege 
of  the  latter,  necessarily,  implies  the  right 
to  reasonable  opportunity  to  exercise  it. 


472  [8] 


WORKMEN'S  COMPENSATION. 


Such  opportunity  should  ordinarily  be  ac- 
corded by  the  act  of  the  injured  man,  not 
secured  by  the  employer  keeping  in  his 
service  a  physician  and  surgeon  charged 
with  the  duty  of  discovery.  Note,  that  the 
employer  is  not  made  liable  for  the  reason- 
able expenses  incurred  by  or  on  behalf  of  the 
employee  in  providing  medical  aid  and 
surgical  treatment,  except  in  case  of 
"neglect  or  refusal  seasonably  to  do  so." 
This  language,  as  indicated,  by  necessary 
inference,  implies  that  he  shall  have  reason- 
able notice  of  the  employee's  need  of  treat- 
ment and  desire  and  willingness  for  him  to 
act  in  the  matter.  The  idea  indulged  in 
below,  that  the  provision  casts  a  duty  on 
the  employer  of  active  vigilance  to  discover 
the  necessities  of  injured  employees,  such  as 
by  keeping  a  physician  and  surgeon 
constantly  employed  and  on  the  alert  to 
make  discoveries,  we  do  not  find  in  the  law 
in  letter  or  spirit.  On  the  contrary,  we 
find  such  idea  plainly  negatived  by  the 
language  and  purpose  of  the  enactment. 
The  legislature,  certainly,  never  dreamed  of 
casting  any  such  burden  on  employers  as 
that  suggested  by  the  Commission  in  its  de- 
cision. To  give  the  law  the  contrary  cast 
by  administration  would  defeat  one  of  its 
most  valuable  safeguards  and  open  up  a 
very  inviting  field  for  the  medical  profes- 
sion to  win  discredit, — one  which  doubtless 
its  members  having  high  ideals  would  gladly 
have  closed,  and  which  justice  to  employer, 
employee,  and  the  public  demands  shall  be 
closed. 

The  result  is  that  Miller,  since  he  failed 
to  notify  his  employer  of  his  needs,  never 
had  competency  to  employ  a  physician  at 
the  expense  of  the  city  of  Milwaukee,  except 
for  such  reasonable  length  of  time  as  neces- 
sarily intervened  between  his  injury  and 
reasonable  opportunity  after  due  notice  for 
the  city  to  exercise  its  privilege.  The  time 
could  not  have  been  long.  How  long,  it  is 
impossible  to  determine  from  the  record.  It 
is  quite  certain  that  Miller  voluntarily 
selected  Dr.  Bradstad  to  treat  him, — not 
knowing,  probably,  of  the  municipality's 
privilege  in  the  matter.  That  is  his  mis- 
fortune, and,  however  much  it  may  be  re- 
gretted, it  is  far  better  that  the  integrity 
of  the  law  be  not  invaded  than  that  it  be 
impaired  in  the  slightest  degree  in  the  par- 
ticular instance  to  avoid  the  consequence  of 
his  not  knowing  or  appreciating  its  require- 
ments. 

The  services  of  the  nurse  for  which  $32 
were  allowed  were  rendered  during  the  first 
four  weeks  after  the  injury.  It  is  notice- 
able that,  notwithstanding  Dr.  Bradstad 
L.R.A.1916A. 


visited  his  patient  twice  each  day  for  some 
forty  days  thereafter,  the  recovery  had  so 
far  progressed  that  services  of  a  nurse  were 
considered  unnecessary.  The  scheme  of  the 
legislature  included  definite  specifications  of 
just  what  burdens  an  employer  shall  bear 
for  the  benefit  of  his  injured  employee.  No- 
mention  is  made  in  such  specifications  of 
services  of  a  nurse  during  the  first  ninety 
days.  Therefore,  compensation  of  that  sort 
must  be  regarded  as  not  within  legislative 
contemplation,  except  as  included  in  the 
term  "medical  and  surgical  treatment  .  .  . 
reasonably  required."  It  has  become  so 
common  for  a  physician  or  surgeon  to  have 
a  nurse  as  his  assistant,  in  cases  requiring 
attention  at  shorter  intervals  than  he  can 
well  be  present,  that  the  major  service  may 
well  be  regarded  as  including  the  minor  at- 
tention in  all  cases  where  a  nurse  is  em- 
ployed by  the  physician  or  surgeon,  or  by 
his  direction,  and  the  services  are  an  inci- 
dent of  the  treatment;  and  that  would  ob- 
tain whether  the  medical  or  surgical  attend- 
ant is  engaged  by  the  employer  or  employee. 
In  neither  case  is  there  any  warrant  in  the 
law,  as  it  seems,  for  allowing  compensation 
for  services  of  a  nurse,  other  than  incident- 
al to  medical  or  surgical  attention,  during 
the  ninety  days  immediately  succeeding  the 
injury. 

We  do  not  fail  to  note  counsel's  claim 
that  services  of  a  nurse  are  inferentially 
provided  for  in  subdivision  1  of  §  2394 — 9, 
as  evidenced  by  the  allowance  for  like  serv- 
ices by  this  language  of  subdivision  (a) 
of  subdivision  2  of  such  section :  "Provided 
that,  if  the  disability  is  such  as  not  only 
to  render  the  injured  employee  entirely  in- 
capable of  work,  but  also  so  helpless  as  to- 
require  the  assistance  of  a  nurse,  the  weekly 
indemnity  during  the  period  of  such  assist- 
ance after  the  first  ninety  days  shall  be 
increased  to  100  per  cent  of  the  average 
weekly  earnings." 

That  plainly  indicates  that  the  legisla- 
ture did  not  intend  to  make  nurse's  services, 
compensable  as  such,  except  contingently 
and  by  the  allowance  of  100  per  cent  of  the 
average  weekly  wages  instead  of  65  per  cent.. 
Manifestly,  double  expense  for  nurse's  serv- 
ices could  not  have  been  contemplated. 
Therefore,  in  case  of  the  full  allowance  of 
100  per  cent  of  the  weekly  wages  under  sub- 
division (a)  no  further  compensation  for 
nurse's  services  could  be  allowed  as  included 
in  medical  and  surgical  treatment,  except 
during  the  eight-day  interim  between  the 
date  of  the  injury  and  commencement  of  the 
compensable  disability  period;  but,  in  any 
case,  good  administration  would  require,  it- 


MILWAUKEE  v.  MILLER. 


[9]   473 


seems,  that  the  necessity  for  services  of  a 
nurse  should  be  certified  to  by  the  attending 
physician  or  surgeon,  as  a  prerequisite  to 
its  allowance  either  as  an  incident  to  the 
medical  or  surgical  treatment  or  greater  al- 
lowance for  disability  indemnity. 

What  has  been  said,  sufficiently  for  the 
case,  disposes  of  the  claim  for  services  of 
a  nurse;  but  another  reason  is  advanced 
why  the  allowance  should  not  have  been 
made  here  under  the  circumstance  that  the 
service  was  voluntarily  performed  by  a  rela- 
tive of  Miller,  who  resided  in  the  house  with 
him,  without  promise  or  expectation  of  com- 
pensation. The  fact  that  she  was  a  minor 
makes  no  difference.  Whatever  she  did  was 
done  substantially  in  the  presence  of  her 
mother,  and,  evidently,  with  the  latter's 
sanction.  As  the  mother  was  a  nearer  rela- 
tive of  Miller  than  the  niece  who  performed 
the  service,  if  the  question  of  whether  the 
attention  is  compensable  as  a  legal  liability 
be  referable  to  the  attitude  of  the  former, 
the  inference  is  all  the  stronger  that  the 
same  was  intended  to  be  gratuitous. 

The  Commission  probably  applied  the  rule 
in  negligence  cases  that  he  who  is  liable  for 
damages  for  a  tortious  injury  cannot  miti- 
gate the  amount  of  the  recovery  by  taking 
advantage  of  the  gratuitous  services  or  lov- 
ing care  of  family  or  friends.  Hulehan  v. 
Green  Bay,  W.  &  St.  P.  R.  Co.  68  Wis.  520, 
32  N.  W.  529;  Grouse  v.  Chicago  &  N.  W. 
R.  Co.  ]02  Wis.  196,  205,  78  N.  W.  446,  778; 
Johnson  v.  St.  Paul  &  W.  Coal  Co.  131  Wis. 
627,  111  S.  W.  722. 

The  line  of  cases  referred  to  and  the  rule 
deducible  therefrom  is  very  familiar ;  but 
it  is  by  no  means  clear  that  they  apply  to 
the  circumstances  before  us.  The  rule  is 
grounded,  not  on  a  statutory  liability,  but 
the  common-law  principle  that  he  who  tor- 
tiously  injures  another  in  his  person  or  his 
property  incurs  a  legal  liability  to  make 
good  to  that  other  all  the  loss  which  is  di- 
rectly and  naturally  caused  thereby,  regard- 
less of  any  element  of  reasonable  anticipa- 
tion of  consequences.  This  extreme  and 
rather  harsh  rule  is  characterized  by  a  penal 
element,  grounded  on  the  moral  turpitude 
of  the  wrongful  act.  Under  the  statutory 
system  for  dealing  with  personal-injury  loss- 
es incident  to  performance  of  the  duties  of 
an  employer,  they  are  regarded  as  mutual 
misfortunes,  to  be  charged  up,  as  directly 
as  practicable,  to  the  cost  of  production. 
The  right  to  have  the  employer  regarded  as 
an  agency  to  make  payment  to  the  employee 
and  absorb  the  same  as  an  expense  of  the 
industry,  regardless  of  whether  the  loss  is 
attributable  to  any  human  fault,  is  a  legis- 
lative creation  within  the  constitutional  ex- 
L.R.A.1916A. 


ercise  of  the  police  power  to  legislate  for 
the  public  welfare.  It  is  not  a  charity, 
but  the  recognition  of  a  moral  duty  and  the 
erection  of  it  into  a  legal  obligation  of  the 
public,  not  of  the  mere  employer,  to  compen- 
sate reasonably  those  who  are  injured  while 
in  the  employment  of  others,  as  a  part  of 
the  natural,  necessary  cost  of  production; 
that  obligation  being  discharged  through 
the  agency  of  the  employer. 

Thus  the  reason  of  the  old  rule  applicable 
to  wrongs  does  not  furnish  any  sound  basis 
for  allowing  compensation  for  the  services 
of  a  nurse  under  the  circumstances  of  this 
case.  The  beneficence  of  the  law  in  recog- 
nizing moral  duty  goes  no  further  than  its 
specifications,  read  in  the  spirit  of  the  en- 
actment. That  does  not  go  to  the  extent  of 
mulcting,  indirectly,  consumers  to  compen- 
sate for  services  gratuitously  performed  in 
taking  care  of  injured  persons.  It  is  con- 
fined to  the  reasonable  expense  incurred  by 
or  on  behalf  of  the  employer  in  providing 
the  specific  elements  of  relief  mentioned  in 
subdivision  1,  §  2394 — 9  of  the  statute;  giv- 
ing to  the  words  "reasonable  expense  in- 
curred" their  fair  meaning,  in  the  light  of 
the  system  the  legislature  created.  "Rea- 
sonable expense  incurred"  should  be  viewed 
from  the  standpoint  of  the  injured  person, 
where  reasonably  necessary,  being,  by  law. 
the  agent  of  the  employer  to  act  in  their 
mutual  interests  in  incurring  the  expense, — 
the  possessor,  so  to  speak,  of  a  power  in 
trust  and  in  duty  bound  to  act  fairly  for 
both  parties.  The  more  clearly  it  is  appre- 
ciated that  the  basic  logic  of  the  law  is 
mutuality  of  interest  between  employers, 
employees,  and  the  public,  and  that  each 
actor  is  charged  with  the  duty  of  promoting 
the  mutual  interests,  the  more  apparent  the 
high  ideal  the  legislature  had  in  mind  in 
creating  the  new  system,  and  the  greater  the 
prospect  of  such  ideal  being  realized.  Noth- 
ing short  of  reasonable  expenditure  of 
money,  or  incurring  of  legal  liability  to  ex- 
pend money  for  the  purposes  contemplated 
in  the  act,  can  be  held  to  satisfy  the  legis- 
lative conception  of  "reasonable  expense 
incurred,"  as  the  words  were  used  in  the  act. 
The  services  of  a  nurse  in  this  case  obvious- 
ly do  not  fall  within  such  meaning. 

The  result  of  the  foregoing  is  that  the 
judgment  appealed  from  must  be  modified 
by  deducting  the  charges  for  nurse  and  for 
medical  and  surgical  treatment,  leaving  the 
sum  of  $177.50,  and  as  so  modified,  be  af- 
firmed. 

So  ordered. 

Siebecker  and  Timlin,  .1J.,  took  no 
part. 


474  [10] 


WORKMEN'S  COMPENSATION. 


NEW    HAMPSHIRE    SUPREME 
COURT. 

MARL  BOODY,  Admrx.,  Etc.,  of  Erastus  S. 
Boody,  Deceased, 

v. 
K.  &  C.  MANUFACTURING  COMPANY. 

(77  N.  H.  208,  90  Atl.  860.) 

Master  and  servant  —  workmen's  com- 
pensation —  work  on  milldams. 

1.  Cleaning  debris  from  the  rack  protect- 
ing the  flume  leading  from   a  milldam   is 
within   the   operation   of   an   act   providing 
compensation   for   one   injured   by  work   in 
any   shop,   mill,   factory   or   other   place   in 
connection  with  any  machinery  propelled  by 
steam  or  other  mechanical  power. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  injury  not  in  connection  with 

machinery. 

2.  Liability   under   workmen's   compensa- 
tion  act   for   injuries   received   in   work   in 
any   shop,   mill,   factory,   or   other  place  in 
connection   with,   or    in   proximity   to,   any 
machinery  propelled  or  operated  by  steam 
or  other  mechanical  power,   is  not  limited 
to    injuries    received    in    proximity    to    the 
machinery,    but    will    include    injuries    by 
falling   from   the   milldam,   where   the   pro- 
vision with  respect  to  explosives  limits  the 
liability  to  injuries  occasioned  by  explosion. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  S. 
Same  —  workmen's  compensation  act  — 
drowning  —  injury  in  course  of  em- 
ployment. 

3.  The    accidental    drowning    of    an    em- 
ployee,  or   his   fall   onto   the   rocks   in   the 
river    bed,   while    engaged    in    the   duty   of 
clearing  debris  from  the  rack  protecting  the 
flume    which    carries    the    water    from    the 
dam  to  the  mill  in  which  he  is  employed, 
is  within   the  operation   of   a   statute  pro- 
viding  compensation   for   injuries   by   acci- 
dent arising  out  of  or  in  the  course  of  the 
employment. 

For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 
Same  —  negligence  in  attempting  work. 

4.  An  employee  is  not  negligent  as  mat- 
ter of  law  in  going  onto  a  wet  and  slippery 
walk  to  clear  the  debris  from  the  rack  pro- 
tecting  the  flume   leading  water   from   the 
dam  to  the  mill  in  which  he  is  employed, 
where  the  work  was  necessary,  and  all  fair- 
minded  men  would  not  agree  that  the  risk 
of  injury  was  so  apparent  that  the  ordinary 
man  would  not  have  encountered  it. 

For  other  cases,  see  Master  and  Servant,  II. 
c,  in  Dig.  1-52  N.  8. 

(April  7,  1914.) 

T71XCEPTIONS  by  defendant  to  rulings  of 
J-J  the  Superior  Court  for  Merrimack  Coun- 

Note.  —  For  annotation  on  the  workmen's 
compensation  acts,  see  post,  23. 
L.R.A.1916A. 


ty,  made  during  the  trial  of  an  action 
brought  to  recover  damages  for  personal  in- 
juries for  which  defendant  was  alleged  to  be 
responsible  under  the  employers'  liability 
and  workmen's  compensation  act,  which  re- 
sulted in  a  verdict  in  plaintiff's  favor.  Over- 
ruled. 

Deceased  was  required,  among  other 
things,  to  clean  the  racks  constructed  to 
catch  rubbish  coming  down  the  race  to  de- 
fendant's mill.  On  the  morning  of  the 
accident  he  was  seen  standing  on  a  walk 
with  his  back  to  the  stream,  attempting 
to  pull  rubbish  out  of  a  rack.  Later  his 
body  was  recovered  from  the  river  below 
the  mill  and  a  broken  rake  was  found  in 
the  flume  and  a  freshly  broken  rake  handle 
was  found  in  the  river. 

Further  facts  appear  in  the  opinion. 

Messrs.  Jones,  Warren,  Wilson,  & 
Manning,  for  defendant: 

If  the  intestate  was  engaged  in  work  out- 
side the  scope  of  his  employment,  recovery 
is  barred. 

Parent  v.  Nashua  Mfg.  Co.  70  N.  H.  199, 
47  Atl.  261. 

Defendant's  negligence  is  not  shown  to 
have  caused  the  injury. 

Dame  v.  Laconia  Car  Co.  Works,  71  N. 
H.  407,  52  Atl.  864,  12  Am.  Neg.  Rep.  520 ; 
Deschenes  v.  Concord  &  M.  R.  Co.  69  N.  H. 
285,  46  Atl.  467;  Reynolds  v.  Burgess  Sul- 
phite Fibre  Co.  73  N.  H.  126,  59  Atl.  615; 
Boucher  v.  Larochelle,  74  N.  H.  433,  15 
L.R.A.(N.S.)  416,  68  Atl.  870. 

Messrs.  Martin  &  Howe,  for  plaintiff: 

Deceased  was  a  workman  within  the 
meaning  of  the  statute,  and  the  evidence 
warranted  the  jury  in  finding  that  his 
death  was  caused  by  defendant's  negligence. 

Hamel  v.  Newmarket  Mfg.  Co.  73  N.  H. 
386,  62  Atl.  592;  Charrier  v.  Boston  &  M.  R. 
Co.  75  N.  H.  59,  70  Atl.  1078;  Gate  v.  Bos- 
ton &  M.  R.  Co.  77  N.  H.  70,  87  Atl.  255; 
Boucher  v.  Larochelle,  74  N.  H.  433,  15 
L.R.A.(N.S.)  416,  68  Atl.  870;  Crawford  v. 
Maine  C.  R.  Co.  76  N.  H.  29,  78  Atl.  1078; 
Lockwood  v.  American  Exp.  Co.  76  N.  H. 
530,  85  Atl.  783;  Godsoe  v.  Dodge  Clothes- 
pin Co.  75  N.  H.  67,  70  Atl.  1073;  Bennett 
v.  Concord  Woodworking  Co.  74  N.  H.  400, 
68  Atl.  460;  Buell  v.  Berlin  Mills  Co.  77 
N.  H.  55,  86  Atl.  256;  Bennett  v.  Warren, 
70  N.  H.  564,  49  Atl.  105. 

It  was  competent  for  the  jury  to  find  that 
the  defendant  should  "have  reasonably 
anticipated  the  plaintiff's  act." 

Godsoe  v.  Dodge  Clothespin  Co.  75  N.  H. 
67,  70  Atl.  1073. 

A  "mill"  does  not  mean  merely  the  build- 
ing in  which  the  business  is  carried  on,  but 
includes  the  site,  dam,  and  other  things 
annexed  to  the  freehold,  necessary  for  its 
beneficial  enjoyment. 


BOODY  v.  K.  &  C.  MFG.  CO. 


[11]   475 


5  Words  &  Phrases,  4507;  Whitney  v. 
Olney,  3  Mason,  280,  Fed.  Cas.  No.  17,595; 
Leonard  v.  White,  7  Mass.  6,  5  Am.  Dec. 
19;  LuttrelPs  Case,  4  Coke,  86a,  10  Eng. 
Rul.  Cas.  294;  Wilcoxon  v.  McGhee,  12  111. 
381,  54  Am.  Dec.  409;  Schott  v.  Harvey,  105 
Pa.  222,  51  Am.  Rep.  201;  Wind  River 
Lumber  Co.  v.  Frankfort  Marine  Acci.  & 
Plate  Glass  Ins.  Co.  116  C.  C.  A.  160,  196 
Fed.  340;  Southern  Bell  Teleph.  &  Teleg. 
Co.  v.  D'Alemberte,  39  Fla.  25,  21  So.  570; 
Geloneck  v.  Dean  Steam  Pump  Co.  165 
Mass.  202,  43  N.  E.  85. 

The  statute  is  constitutional. 

State  v.  Roberts,  74  N.  H.  478,  16  L.R.A. 
(N.S.)  1115,  69  Atl.  722;  State  v.  Aldrich, 
70  N.  H.  391,  85  Am.  St.  Rep.  631,  47  Atl. 
602;  Cooley,  Const.  Lim.  6th  ed.  479-481; 
State  v.  Griffin,  69  N.  H.  34,  41  L.R.A.  177, 
76  Am.  St.  Rep.  139,  39  So.  260;  Orient 
Ins.  Co.  v.  Daggs,  172  t).  S.  557,  43  L. 
ed.  552,  19  Sup.  Ct.  Rep.  281;  Second  Em- 
ployers' Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  51 
54,  56  L.  ed.  327,  346,  347,  38  L.R.A. (N.S.) 
44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A. 
875;  Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnip- 
seed,  219  U.  S.  35,  55  L.  ed.  78,  32  L.R.A. 
(N.S.)  226,  31  Sup.  Ct.  Rep  136,  Ann.  Cas. 
1912A,  463,  2  N.  C.  C.  A.  243;  Doherty, 
Liability  of  Railroads  to  Interstate  Em- 
ployees, 222;  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Ellis,  165  U.  S.  150,  41  L.  ed.  666,  17  Sup. 
Ct.  Rep.  255. 

The  statutes  are  drawn  with  a  solicitude 
to  cover  every  species  of  property  or  appli- 
ance in  respect  to  which  a  servant  is  re- 
quired to  do  labor. 

Thomp.  Neg.  2d  ed.  §  4559;  Kelley  v. 
Great  Northern  R.  Co.  152  Fed.  211;  Louis- 
ville &  N.  R.  Co.  v.  Melton,  218  U.  S.  36, 
54  L.  ed.  921,  47  L.R.A. (N.S.)  84,  30  Sup. 
Ct.  Rep.  676;  Merritt  v.  American  Woolen 
Co.  71  N.  H.  493,  53  Atl.  303;  English  v. 
Amidon,  72  N.  H.  301,  56  Atl.  548,  15  Am. 
Neg.  Rep.  391 ;  Hamel  v.  Newmarket  Mfg. 
Co.  73  N.  H.  386,  62  Atl.  592;  Cate  v. 
Boston  &  M.  R.  Co.  77  N.  H.  70,  87  Atl. 
255;  Charrier  v.  Boston  &  M.  R.  Co.  75 
N.  H.  59,  70  Atl.  1078;  Bennett  v.  Warren, 
70  N.  H.  564,  49  Atl.  105;  Godsoe  v.  Dodge 
Clothespin  Co.  75  N.  H.  67,  70  Atl.  1073; 
Young  v.  American  Exp.  Co.  76  N.  H.  582, 
86  Atl.  138;  Zabriskie  v.  Erie  R.  Co.  85 
N.  J.  L.  157,  88  Atl.  824,  4  N.  C.  C.  A. 
778;  Bryant  v.  Fissell,  84  N.  J.  L.  72,  86 
Atl.  458,  3  N.  C.  C.  A.  585;  Muzik  v.  Erie 
R.  Co.  85  N.  J.  L.  129,  89  Atl.  248,  4  N. 
C.  C.  A.  732;  Nicholson  v.  Transylvania  R. 
Co.  138  N.  C.  516,  51  S.  E.  40;  Northwest- 
ern Iron  Co.  v.  Industrial  Commission,  154 
Wis.  97,  post,  366,  142  N.  W.  271,  Ann.  Cas. 
1915B,  847;  2  Labatt,  Mast.  &  S.  §§  639, 
663. 
L.R.A.1916A. 


I  When  there  is  evidence  that  the  accident 
was  caused  by  the  defendant's  negligence, 

I  there  may  be  a  recovery. 

j  Boucher  v.  Larochelle,  74  N.  H.  433,  16 
L.R.A. (N.S.)  416,  68  Atl.  870;  Lockwood  v. 
American  Exp.  Co.  76  N.  H.  530,  85  Atl. 
783;  Godsoe  v.  Dodge  Clothespin  Co.  75 
N.  H.  67,  70  Atl.  1073;  Bennett  v.  Concord 
Woodworking  Co.  74  N.  H.  400,  68  Atl. 
460;  Cate  v.  Boston  &  M.  R.  Co.  77  N.  H. 
70,  87  Atl.  255;  Buell  v.  Berlin  Mills  Co. 
77  N.  H.  55,  86  Atl.  256. 

Young,  J.,  delivered  the  opinion  of  the 
court : 

By  the  enactment  of  chapter  163,  Laws  of 
1911,  the  legislature  intended  to  change 
the  common  law  so  that  one  who  is  injured 
by  accident  while  engaged  in  work  in  which 
the  risks  are  great  and  difficult  to  avoid 
may  be  compensated,  in  part,  at  least,  for 
the  loss  thereby  sustained,  if  the  accident 
is  one  arising  out  of  and  in  the  course  of 
the  employment,  regardless  of  the  cause  of 
his  injury.  Section  2.  It  sems  to  have  been 
understood,  however,  that  this  change  could 
not  be  made  without  the  assent  of  all  those 
affected  by  it.  It  was  necessary,  therefore, 
from  that  view  point,  to  secure  the  assent 
of  those  affected  by  the  act  as  well  as  to 
provide  for  compensation  to  the  injured. 
It  is  the  office  of  §  1  to  define  those  who 
come  within  the  operation  of  the  act,  and 
of  §§  2,  3,  and  4  to  induce  them  to  accept 
its  provisions.  The  means  devised  to  in- 
duce such  acceptance  by  employers  were: 
(1)  To  provide  that,  if  an  employee  is  in- 
jured by  accident  arising  out  of  and  in  the 
course  of  the  employment,  caused  in  whole 
or  in  part  by  the  negligence  of  his  em- 
ployers or  of  their  servants  or  agents,  the 
employers  shall  be  liable  to  the  employee 
for  all  the  loss  he  sustains,  and  he  "shall 
not  be  held  to  have  assumed  the  risk"  of 
his  injury;  but  there  shall  "be  no  liability 
under  this  section,  for  any  injury  to  which 
it  shall  be  made  to  appear  by  a  preponder- 
ance of  evidence  that  the  negligence  of  the 
plaintiff  contributed"  (§2);  and  then  (2) 
to  relieve  employers  who  accept  the  act  in 
accordance  with  the  provisions  of  §  3  from 
the  burdens  imposed  on  them  in  §  2.  In 
other  words,  the  means  the  legislature  de- 
vised to  induce  employers  to  accept  the  pro- 
visions of  the  act  was  to  take  from  those 
who  do  not  accept  it  about  the  only  real 
defense  to  an  action  by  a  servant  which 
is  open  to  his  employer  at  common  law. 

Since  the  defendants  have  not  complied 
with  the  provisions  of  §  3,  the  question  of 
law  raised  by  their  first  exception  is  wheth- 
er it  can  be  found :  ( 1 )  That  the  intestate 
was  engaged  in  one  of  the  employments  de- 
scribed in  §  1;  (2)  that  he  was  injured  by 


476  [12] 


WORKMEN'S  COMPENSATION. 


accident  arising  out  of  and  in  the  course 
of  the  employment;  (3)  that  their  fault 
contributed  to  cause  his  injury;  and  (4) 
that  he  was  free  from  fault. 

1.  One  of  the  employments  described  in 
§  1  is  "work  in  any  shop,  mill,  factory  or 
other  place  on,  in  connection  with,  or  in 
proximity  to  any  hoisting  apparatus,  or 
any  machinery  propelled  or  operated  by 
steam  or  other  mechanical  power,  in  which 
shop,  mill,  factory,  or  other  place  five  or 
more  persons  are  engaged  in  manual  or 
mechanical  labor."  The  word  "mill"  may 
be  used  as  meaning  a  building  in  which 
manufacturing  is  carried  on.  It  is,  however, 
often  used  as  meaning  a  manufacturing 
establishment,  and  when  used  in  this  sense 
it  includes  all  that  is  usually  intended  by 
the  plant  of  a  manufacturing  concern;  that 
is,  it  includes  not  only  the  buildings  in 
which  the  work  is  done,  but  every  appurten- 
ant to  them.  The  description  of  an  accident 
that  will  entitle  an  employee  to  the  benefits 
of  the  act  as  one  caused  by  any  defect  in 
the  employer's  "plant"  (§  2)  tends  to  the 
conclusion  that  that  is  the  sense  in  which 
the  word  "mill"  is  used  in  §  1,  and  so  does 
the  context,  for  "employment"  (b)  is  de- 
scribed as  "work  in  any  shop,  mill,  factory, 
or  other  place,"  not  other  building,  as  it 
probably  would  be  if  the  words  "mill, 
shop,  and  factory"  were  used  in  that  sense. 
As  there  is  nothing  to  rebut  this  presump- 
tion, it  must  be  held  that  "mill,"  as  used 
in  §  1,  includes  not  only  the  building  in 
which  the  defendants'  business  is  carried 
on,  but  their  dam,  flume,  yard,  and  the 
ways  they  provide  for  the  use  of  their  em- 
ployees. 27  Cyc.  511,  II  B;  20  Am.  &  Eng. 
Enc.  Law,  674,  note,  "Common  Usage;"  Web- 
ster, New  Int.  Diet.  "Mill;"  6  Century 
Diet.  "Mill."  The  intestate,  therefore,  was 
engaged  in  employment  (b),  and  the  plain- 
tiff is  within  the  operation  of  the  act  unless, 
as  the  defendants  contend,  the  employee's  in- 
jury must  be  caused  by  a  particular  risk 
peculiar  to  the  employment  in  which  he  is 
engaged  in  order  to  bring  him  within  the 
provisions  of  the  act. 

It  will  be  necessary,  therefore,  to  con- 
sider what  the  legislature  intended  when  it 
enacted:  "This  act  shall  apply  only  to 
workmen  engaged  in  manual  or  mechanical 
labor  in  the  employments  described  in  this 
section."  Section  1. 

The  section  describes  five  separate  employ- 
ments, (a),  (b),  (c),  (d),  and  (e),  and 
there  are  certain  risks  peculiar  to  each 
which  probably  induced  the  legislature  to 
include  those  exposed  to  them  within  the 
operation  of  the  act,  for  the  dangers  inci- 
dent to  these  risks  are  great  and  difficult 
to  avoid.  Since  this  is  so,  the  defendants 
say  it  follows  that  a  person  engaged  in  one 
L.R.A.1916A. 


of  those  employments  is  not  entitled  to  re- 
lief unless  his  injury  results  from  the  par- 
ticular risk  which  induced  the  legislature  to- 
include  those  engaged  in  these  employments 
within  the  operation  of  the  act.  To  be  more 
specific :  They  say  that  a  person  who  is  in- 
jured while  at  "work  in  any  shop,  mill, 
factory,  or  other  place"  is  not  entitled  to 
the  benefits  of  the  act,  notwithstanding  he 
is  injured  by  accident  arising  out  of  and  in 
the  course  of  his  employment,  unless  his 
injury  is  caused  either  by  the  negligence  of 
a  fellow  servant,  or  by  one  of  the  risks  in- 
cident to  work  "on,  in  connection  with,  or 
in  proximity  to"  power-driven  machinery; 
that  is,  unless  his  injury  is  caused  by  one 
of  the  risks  which  induced  the  legislature 
to  include  those  engaged  in  employment  (b) 
within  the  operation  of  the  act.  They  say 
that  "not  every  employee  in  a  given  busi- 
ness or  establishment  covered  by  the  act  is 
within  its  protection  but  only  those  work- 
men .  .  .  who  are  endangered"  by 
the  dangerous  agencies  described  in  the  act, 
"while  in  the  scope  of  their  employment." 
Is  this  contention  sound? 

It  will  be  helpful,  when  considering  the 
question,  to  remember  that  it  is  the  office  of 
§1  to  limit  the  workmen  who  come  within 
the  operation  of  the  act,  and  of  §  2  to 
describe  an  accident  that  will  entitle  such 
workmen  to  its  benefits.  In  the  final 
analysis,  the  defendants'  contention  is  that 
the  words  "workmen  engaged  in  ... 
work  in  any  shop,  mill,  factory,  or  other 
place,  on,  in  connection  with,  or  in  prox- 
imity to,"  power-driven  machinery,  are  de- 
scriptive of  an  accident,  not  an  employment, 
which  will  bring  a  workman  within  the 
operation  of  the  act,  or  that  those  words 
were  intended  to  limit  the  accidents  that 
will  entitle  those  engaged  in  such  work  to- 
the  benefits  of  the  act.  The  act,  however, 
says  that  it  applies  "to  workmen  engaged 
in  manual  or  mechanical  labor  in  the  em- 
ployments described  in  this  section,"  not 
to  those  who  are  injured  while  engaged  in 
any  one  of  those  employments  by  the  par- 
ticular risk  which  induced  the  legislature 
to  include  those  engaged  in  it  within  the 
operation  of  the  act;  and  there  would  be 
more  force  in  the  defendants'  contention  if 
it  were  not  for  the  fact  that  the  description 
of  employment  (d),  all  work  necessitating 
dangerous  proximity  to  steam  boilers  and 
explosives,  concludes:  "Provided  injury  is 
occasioned  by  the  explosion  of  any  such 
boiler  or  explosive."  The  fact  that  the  leg- 
islature expressed  an  intention  to  limit 
the  operation  of  the  act,  in  so  far  as  per- 
sons engaged  in  the  employment  are  con- 
cerned, to  those  who  are  injured  as  a  re- 
sult of  the  particular  risk  it  had  in  mind1 
when  it  described  the  employment,  nega- 


BOODY  v.  K.  &  C.  MFG.  CO. 


[13]  477 


tives  an  implied  intention  to  limit  the  • 
operation  of  the  act  in  the  same  way  in  | 
«o  far  as  those  engaged  in  the  other  four  ' 
employments  are  concerned.  In  other 
words,  it  is  probable  that  if  the  legislature 
had  intended  to  limit  the  benefits  of  the 
act,  in  so  far  as  these  four  employments  are 
concerned,  to  those  who  are  injured  by  the 
particular  risk  that  induced  it  to  include 
them  within  the  operation  of  the  act,  it 
either  would  have  omitted  this  proviso  from 
the  description  of  (d),  or  included  similar 
provisos  in  the  descriptions  of  (a),  (b), 
(c),  and  (e).  The  fact  that  the  legislature 
added  this  proviso  to  the  description  of  one 
and  omitted  similar  provisos  from  the  de- 
scription of  the  other  employments,  when 
taken  in  connection  with  the  fact  that  the 
declared  purpose  of  §  1  is  to  limit  the 
workmen  to  whom  the  act  applies,  and  of 
§  2,  to  describe  the  accidents  which  will 
entitle  them  to  its  benefits,  makes  it  cer- 
tain that  those  who  are  injured  in  an  ac- 
cident described  in  §  2,  while  engaged  in 
employments  (a),  (b),  (c),and  (e),  are  en- 
titled to  the  benefits  of  the  act,  both  when 
their  injuries  are  and  when  they  are  not 
caused  by  the  particular  risk  which  induced 
the  legislature  to  include  those  engaged  in 
their  employments  within  the  operation  of 
the  act.  In  short,  there  is  nothing  in  the 
act  to  show  an  intention  to  confine  its  bene- 
fits, in  so  far  as  those  engaged  in  employ- 
ment (b)  are  concerned,  to  employees  who 
are  injured  either  by  the  negligence  of  a 
fellow  servant  or  by  coming  in  contact  with 
power-driven  machinery.  A  somewhat  sim- 
ilar provision  of  the  English  workmen's 
compensation  act  of  1897  (60-61  Viet.  chap. 
37)  is  construed  in  the  same  way.  Maude 
v.  Brook  [1900]  1  Q.  B.  575,  69  L.  J.  Q.  B. 
N.  S.  322,  64  J.  P.  181,  48  Week.  Rep.  290, 
82  L.  T.  N.  S.  39,  16  Times  L.  R.  164. 

Any  person,  therefore,  who  is  engaged 
in  manual  or  mechanical  labor  in  any  shop, 
mill,  factory,  or  other  place,  by  whatever 
name  known,  in  which  shop,  mill,  factory, 
or  place  power-driven  machinery  is  used 
and  five  or  more  persons  are  employed,  is 
engaged  in  employment  (b)  and  is  en- 
titled to  the  benfits  of  the  act  if  he  is 
injured  "by  accident  arising  out  of  and 
in  the  course  of  the  employment." 

2.  This  brings  us  to  the  question  whether 
it  can  be  found  that  the  intestate  lost  his 
life  in  such  an  accident.  The  words  "by 
accident  arising  out  of  and  in  the  course 
of  the  employment"  are  found  in  many 
(perhaps  in  most)  employers'  liability  and 
workmen's  compensation  acts.  As  these 
acts  are  construed,  any  untoward  and  un- 
expected event  is  an  accident.  Fenton  v. 
Thorley  [1903]  A.  C.  443,  72  L.  J.  Q.  B.  ' 
N.  S.  787,  52  Week.  Rep.  81,  89  L.  T.  N.  S  ' 
L.R.A.1916A. 


314,  19  Times  L.  R.  684.  That  is,  "acci- 
dent" is  used  in  its  popular  sense.  Since 
this  is  so,  the  intestate  met  his  death  by 
accident,  unless  he  jumped  into  the  river 
to  kill  himself.  It  can  be  found,  therefore, 
that  his  death  was  accidental.  The  next 
question  to  be  considered  is  whether  the  ac- 
cident was  one  arising  out  of  and  in  the 
course  of  his  employment.  The  accident 
arose  out  of  the  intestate's  employment, 
within  the  meaning  of  all  the  cases;  but, 
while  there  is  nothing  that  can  be  called  a 
consensus  of  opinion  as  to  what  constitutes 
an  accident  (Bryant  v.  Fissell,  84  N.  J. 
L.  72,  86  Atl.  458;  Parker  v.  Hambrook, 
107  L.  T.  N.  S.  249,  [1912]  W.  N.  205, 
56  Sol.  Jo.  750,  5  B.  W.  C.  C.  608,  Ann. 
Gas.  1913C,  1;  Fitzgerald  v.  Clarke  [1908] 
2  K.  B.  796,  77  L.  J.  K.  B.  N.  S.  1018, 
99  L.  T.  N.  S.  101)  most  of  the  cases 
that  have  been  decided  since  1902  would 
have  been  decided  as  they  were,  if  the  test 
that  is  applied  to  determine  whether  an  em- 
ployee was  acting  within  the  scope  of  his 
employment  when  he  was  injured  had  been 
applied  to  determine  whether  the  employee 
was  injured  by  accident  arising  in  the 
course  of  the  employment.  For  a  review 
of  the  authorities  on  this  question,  see  an 
article  by  Professor  Bohlen  in  25  Harvard 
Law  Review,  328,  and  note,  in  Ann.  Cas. 
191 3C,  4-21.  Therefore  the  method  which 
should  be  employed  in  this  case  to  deter- 
mine whether  the  intestate  was  injured  by 
accident  arising  in  the  course  of  the  employ- 
ment is  to  inquire  whether  it  can  be  found 
(1)  that  he  was  cleaning  the  rack  at  the 
intake  when  the  accident  happened;  and,  if 
it  can  be,  (2)  whether  he  thought  the  de- 
fendants expected  him  to  clean  it  that 
morning. 

It  is  true  that  no  one  saw  the  accident, 
but  the  intestate  was  seen  at  or  about  the 
time  it  happened,  and  at  that  time  was 
standing  on  the  walk  very  near  to  the 
river,  with  his  back  toward  the  stream, 
trying  to  pull  some  bushes  out  of  the  rack 
with  an  ordinary  garden  rake.  As  no  one 
saw  just  what  happened,  it  is  fair  to  ask 
what  would  have  been  likely  to  happen  if 
the  rake  handle  broke  or  the  bushes  gave 
way  suddenly.  It  is  clear  that,  if  either 
of  those  things  happened,  he  might  lose 
his  balance  and  strike  his  head  on  the 
rocks  in  the  river.  The  marks  that  were 
found  on  his  body  tend  to  the  conclusion 
that  that  was  just  what  did  happen.  It 
can  be  found,  therefore,  from  the  evidence  as 
to  where  he  was  standing  about  the  time 
the  accident  happened,  his  position  with 
reference  to  the  river,  and  the  work  he  was 
doing  at  that  time,  taken  in  connection  with 
the  evidence  as  to  the  rocks  in  the  river 
and  the  marks  found  on  his  body,  either 


478  [14] 


WORKMEN'S  COMPENSATION. 


that  the  rake  handle  broke,  or  that  the 
bushes  on  which  he  was  pulling  gave  way 
suddenly,  and  that  he  lost  his  balance  and 
in  falling  struck  his  head  on  the  rocks  and 
was  killed.  In  other  words,  it  can  be 
found  that  he  was  cleaning  the  rack  at 
the  intake  when  the  accident  happened. 

Can  it  be  found  that  he  supposed  the 
defendants  expected  him  to  clean  that  rack 
that  morning?  His  foreman  testified  that 
it  was  the  intestate's  duty  to  clean  the 
rack  when  it  needed  cleaning,  but  said 
he  told  him  not  to  clean  it  that  morning, 
but  to  clean  the  rack  at  the  wheels  and  then 
report  for  work.  There  was  evidence,  how- 
ever, to  warrant  a  finding  that  no  such  in- 
structions were  given.  It  can  be  found  that 
both  racks  needed  cleaning  and  that  it  was 
reasonable  for  the  intestate  to  think  he  was 
expected  to  clean  them.  Consequently  it 
can  be  found  that  he  was  doing  what  he 
was  employed  to  do,  and  doing  it  in  the  way 
he  was  expected  to  do  it,  when  the  accident 
happened.  In  other  words,  it  can  be  found 
that  he  was  killed  "by  accident  arising 
.  .  .  in  the  course  of  the  employment." 
De  Fazio  v.  Goldschmidt  Detinning  Co.  — 
N.  J.  L.  — ,  88  Atl.  705,  4  N.  C.  C.  A.  716; 
Zabriskie  v.  Erie  R.  Co.  85  N.  J.  L.  157, 
88  Atl.  824,  4  N.  C.  C.  A.  778. 

3.  It   can   be -found   that  the   defendants 
were  in  fault  for  not  railing  the  walk,  and 
that,   if   it   had   been   properly   railed,   the 
accident  would  not  have  happened;  in  other 
words,   that,  but  for  their   fault,  the  acci- 
dent would  not  have  happened. 

4.  Can    it    be    found    that    the    intestate 
was  free  from  fault?     The  defendants  con- 
tend that  he  was  negligent  in  undertaking 


to  clean  the  racks  that  morning.  The  test 
by  which  to  decide  that  question  is  the 
answer  to  the  inquiry  whether  the  ordinary 
man,  with  his  knowledge  of  the  situation 
and  its  dangers,  would  have  undertaken  the 
work.  Although  the  intestate  knew  the 
walk  was  wet  and  slippery,  as  well  as  un- 
railed,  and  that  if  he  lost  his  balance  he 
might  fall  into  the  river,  it  cannot  be  said 
that  all  fair-minded  men  must  agree  that 
the  risk  incident  to  doing  the  work  that 
morning,  because  of  the  condition  of  the 
walk  or  the  character  of  the  instrumentali- 
ties the  defendants  provided,  was  so  great 
or  the  danger  so  apparent  that  the  ordi- 
nary man,  with  his  knowledge  of  the  situ- 
ation and  its  dangers,  would  not  have  en- 
countered it.  Consequently  it  cannot  be 
said,  as  matter  of  law,  that  he  was  in  fault 
for  encountering  it. 

There  is  no  merit  in  the  defendants'  con- 
tention that  the  instructions  excepted  to 
were  calculated  to  give  the  jury  the  impres- 
sion that  the  statute  permitted  a  recovery, 
even  though  the  accident  would  not  have 
happened  but  for  the  intestate's  negligence. 
It  is  enough  to  say  that  no  such  inference 
can  be  drawn  from  the  charge.  In  fact,  the 
jury  were  told  in  so  many  words  that  the 
plaintiff  could  not  recover  unless  they  found 
"from  the  evidence"  that  the  intestate's 
carelessness  did  not  contribute  to  cause  his 
death. 

Exceptions  overruled. 

Plummer,  J.,  did  not  sit;  the  others  con- 
curred. 

Petition  for  rehearing  denied. 


WISCONSIN  SUPREME  COURT. 

EDWARD  A.  KILL,  Appt., 

v. 

INDUSTRIAL     COMMISSION     OF     WIS- 
CONSIN et  al.,  Respts. 

(160  Wis.  549,  152  N.  W.  148.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  aggravation  of  in- 
jury. 

The  aggravation  by  a  boxing  match  of  a 
wound  received  in  the  course  of  employment 
which  had  practically  healed  and  would 
have  caused  no  further  trouble  had  it  been 
given  a  little  more  rest,  so  that  blood  poi- 
soning and  permanent  injury  to  a  hand  re- 
sult, is  the  proximate  cause  of  such  injury, 
and  no  recovery  can  be  had  under  a  work- 
men's compensation  act  providing  compensa- 

Note.  —  For  annotation  on  the  workmen's 
compensation  acts,  see  post,  23. 
L.R.A.1916A. 


tion  for  injuries  received  in  the  course  of 
employment. 

For  other  cases,  see  Proximate  Cause,  V.  in 
Dig.  1-52  N.  8. 

(April  13,  1915.) 

APPEAL  by  plaintiff  from  an  order  of  the 
Circuit  Court  for  Dane  County  con- 
firming an  order  of  the  Industrial  Commis- 
sion dismissing  his  application  for  compen- 
sation, under  the  workmen's  compensation 
act,  from  the  defendant  packing  company  for 
injuries  received  in  the  course  of  his  em- 
ployment. Affirmed. 

Statement  by  Kerwin,  J. : 

The  appeal  is  from  a  judgment  confirm- 
ing an  order  of  the  Industrial  Commission 
dismissing  the  application  of  the  appellant 
for  compensation  from  the  respondent 
Plankinton  Packing  Company. 

The  appellant  was  employed  as  a  tinsmith 


KILT.  v.  INDUSTRIAL  COMMISSION. 


[15]   479 


by  the  packing  company  in  its  plant.  On 
April  16,  1913,  he  accidentally  cut  his  left 
wrist.  The  respondent  packing  company 
sent  him  to  a  physician,  who  treated  him. 
On  April  25, 1913,  the  wound  was  practically 
healed,  and  the  physician  discharged  him 
as  cured.  Saturday  evening,  April  26th, 
the  appellant  engaged  in  a  boxing  match, 
and  on  the  following  Monday  night  suffered 
pain  in  his  wrist.  On  the  following  day  his 
wrist  was  found  to  be  infected,  and  finally 
he  lost  bones  of  the  hand  and  wrist,  in- 
capacitating him  from  following  his  trade. 
The  Commission  found  as  follows:  "From 
the  evidence  before  us  we  are  fairly  satis- 
fied that  the  wrist  became  infected  at  the 
time  of  the  injury  on  April  16th,  through 
the  introduction  of  poisonous  bacteria 
known  as  streptococci.  Through  nature's 
process  these  germs  were  walled  off  and  did 
no  damage  at  first.  This  was  because  the 
patient  was  strong  enough  to  resist  the  at- 
tack of  the  bacteria.  Had  he  not  entered 
the  boxing  bout,  we  are  satisfied  that  in  the 
course  of  time  the  bacteria  would  have  been 
expelled  from  the  system  without  harmful 
results.  But  the  strenuous  exercise  of  the 
boxing  bout  had  the  effect  of  'lighting  up' 
or  stirring  into  activity  the  poisonous  germs, 
and  at  the  same  time  lessening  the  resist- 
ing power  of  the  applicant,  resulting  in  the 
active  poisoning  of  the  arm.  Before  enter- 
ing the  bout,  on  the  25th  of  April,  at  the 
time  of  his  discharge  by  the  doctor,  the 
applicant  was  advised  not  to  enter  the  bout. 
The  doctor  told  him  it  might  do  harm,  and 
it  might  not, — it  would  be  impossible  to 
say, — but  advised  him  not  to  enter  it,  and 
explained  to  him  the  danger  of  a  possible 
tearing  or  bruising.  Before  entering  the 
bout  the  applicant  bandaged  his  wrist  and 
provided  against  tearing  or  bruising,  and 
no  tearing  or  bruising  resulted  from  the 
bout.  We  cannot  say  from  the  evidence  that 
applicant  wilfully  disregarded  the  advice  of 
his  physician,  because  we  cannot  find  that 
the  physician  gave  him  positive  instructions 
not  to  enter  the  bout,  but  merely  advised 
him  that  there  was  danger  of  harm  from 
tearing  or  bruising.  He  certainly  did  not 
point  out  to  the  applicant  the  danger  of  the 
results  that  actually  did  follow  from  the 
exercise.  Applicant  was  not  warned  of  the 
danger  of  blood  poisoning  from  the  'lighting 
up'  of  the  present  infection.  Evidently  he 
did  not  know  that  his  arm  was  infected,  or 
that  such  infection  might  become  dangerous 
from  strenuous  exercise.  For  this  reason 
we  cannot  say  that  the  applicant  wilfully 
disregarded  the  advice  of  the  physician. 
Had  the  applicant  not  been  injured  on  the 
16th  of  April  while  in  the  employ  of  the 
respondent,  the  loss  of  the  use  of  his  hand 
would  not  have  followed  the  boxing  bout. 
L.R.A.1916A. 


Notwithstanding  such  accident,  had  appli- 
cant refrained  from  entering  the  boxing  bout 
and  given  his  wrist  only  moderate  exercise 
for  a  few  days  more,  no  serious  results 
would  have  followed." 

Upon  the  foregoing  findings  the  Commis- 
sion dismissed  the  application.  The  appel- 
lant assigns  the  following  errors: 

(1)  That  the  finding  that,  "had  he  not 
entered   the   boxing   bout,   we   are   satisfied 
that  in  the  course  of  time  the  bacteria  would 
have  been  expelled  from  the  system  without 
harmful  results,"  is  not  supported  by  the 
evidence. 

(2)  That  the  finding  that,  "notwithstand- 
ing such  accident,  had  applicant  refrained 
from  entering  the  boxing  bout  and  given  his 
wrist  only  moderate  exercise  for  a  few  days 
more,    no    serious    results    would   have    fol- 
lowed," is  not  supported  by  the  evidence. 

(3)  That  the  findings  of  fact  do  not  sup- 
port the  order  made  by  the  Commission. 

Messrs.  Henry  V.  Kane  and  J.  W. 
Flynn,  for  appellant: 

If  the  injury  or  death  can  be  traced  by 
physical  causation  not  too  remote  in  time 
or  place  to  the  accident,  then  such  injury 
or  death  was  proximately  caused  by  the 
accident,  irrespective  of  any  element  of  rea- 
sonable anticipation. 

Milwaukee  v.  Industrial  Commission,  160 
Wis.  238,  151  N.  W.  247;  Matwitz  v.  Pfister 
&  V.  Leather  Co.  Workmen's  Compensation 
2d  Annual  Report,  p.  73 ;  Burns's  Case,  218 
Mass.  8,  105  N.  E.  601,  5  N.  C.  C.  A.  635; 
Newcomb  v.  Albertson,  85  N.  J.  L.  435,  89 
Atl.  928,  4  N.  C.  C.  A.  783;  Brown  v.  Kent 
[1913]  3  K.  B.  624,  82  L.  J.  K.  B.  N.  S. 
1039,  109  L.  T.  N.  S.  293,  29  Times  L.  R. 
702,  6  B.  W.  C.  C.  745 ;  Ystradowen  Colliery 
Co.  v.  Griffiths  [1909]  2  K.  B.  533,  78  L.  J. 
K.  B.  N.  S.  1044,  100  L.  T.  N.  S.  869,  25 
Times  L.  R.  622. 

While  the  original  accident  was  the  proxi- 
mate cause  of  plaintiff's  disability  within 
the  meaning  of  the  compensation  act,  the 
lighting  up  of  the  present  germs  by  the  ex- 
ercise of  the  bout  was  not  an  intervening 
agency. 

Batton  v.  Public  Service  Corp.  75  N.  J. 
L.  857,  18  L.R.A.  640,  127  Am.  St.  Rep.  855, 
69  Atl.  164;  Hope  v.  Troy  &  L.  R.  Co.  40 
Hun,  438,  5  Am.  Neg.  Cas.  430,  affirmed  in 
HO  N.  Y.  643,  17  N.  E.  873;  Wieting  v. 
Millston,  77  Wis.  523,  46  N.  W.  879;  Salla- 
day  v.  Dodgeville,  85  Wis.  318,  20  L.R.A. 
541,  55  N.  W.  696. 

Messrs.  W.  C.  Owen,  Attorney  General, 
and  Winfleld  W.  Gilman,  Assistant  At- 
torney General,  for  respondent  Commission: 

The  inquiry  whether  the  injury  to  plain- 
tiff, that  is  the  loss  of  the  use  of  his  hand, 
was  proximately  caused  by  the  accident,  is 


WORKMEN'S  COMPENSATION. 


a  question  of  fact  to  be  decided  by  the  Com- 
mission. 

Atkinson  v.  Goodrich  Transp.  Co.  60  Wis. 
141,  50  Am.  Rep.  352,  18  N.  W.  764;  Gould 
v.  Merrill  R.  &  Lighting  Co.  139  Wis.  433, 
121  N.  W.  161;  Fulirmann  v.  Coddington 
Engineering  Co.  156  Wis.  650,  146  N.  W. 
796;  Ward  v.  ^Etna  L.  Ins.  Co.  82  Neb.  499, 
l.]8  N.  W.  70;  Hales  v.  Michigan  C.  R.  Co. 
118  C.  C.  A.  627,  200  Fed.  533;  Milwaukee 
&  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S.  469,  24 
L.  ed.  256;  Proulx  v.  Bay  City,  143  Mich. 
550,  ]07  N.  W.  273;  Dunnigan  v.  Caven  & 
Lind  [1911]  S.  C.  579,  4  B.  W.  C.  C.  386,  48 
Scot.  L.  R.  459;  Smith  v.  Cord  Taton  Col- 
liery Co.  2  W.  C.  C.  121. 

The  boxing  bout,  and  not  the  accident, 
was  the  proximate  cause  of  the  injury. 

Button  v.  Wauwatosa,  29  Wis.  21,  9  Am. 
Rep.  534;  Jucker  v.  Chicago  &  N.  W.  R.  Co. 
52  Wis.  350,  8  N.  W.  862;  Brown  v.  Chica- 
go, M.  &  St.  P.  R.  Co.  54  Wis.  342,  41  Am. 
Rep.  41,  11  N.  W.  356,  911,  7  Am.  Neg.  Cas. 
203;  Barton  v.  Pepin  County  Agri.  Soc.  83 
Wis.  19,  52  N.  W.  1129;  Chicago,  B.  &  Q.  R. 
Co.  v.  Richardson,  121  C.  C.  A.  144,  202  Fed. 
836;  Peck,  Proximate  Cause,  §  58,  fl  322; 
Seith  v.  Commonwealth  Electric  Co.  241  111. 
252,  24  L.R.A.(N.S.)  978,  132  Am.  St.  Rep. 
204,  89  N.  E.  425;  Beckham  v.  Seaboard 
Air  Line  R.  Co.  127  Ga.  550,  12  L.R.A. 
(N.S.)  476,  56  S.  E.  638;  Louisiana  Mut. 
Ins.  Co.  v.  Tweed,  7  Wall.  44,  52,  19  L.  ed. 
65,  67;  The  Santa  Rita  (Societe  Nouvelle 
D'Armement  v.  United  States  S.  S.  Co.)  30 
L.R.A.(N.S.)  1210,  100  C.  C.  A.  360,  176 
Fed.  890 ;  Atchison  T.  &  S.  F.  R.  Co.  v.  Cal- 
houn,  213  U.  S.  1,  7,  53  L.  ed.  671,  674,  29 
Sup.  Ct.  Rep.  321;  Jennings  v.  Davis,  109 
C.  C.  A.  451,  187  Fed.  703;  Hartford  Steam 
Boiler  &  Inspection  Co.  v.  Pabst  Brewing  Co. 
120  C.  C.  A.  54,  201  Fed.  617,  Ann.  Cas. 
1915A,  637;  Lewis  v.  London  [1914]  W.  C. 
&  Ins.  Rep.  299,  7  B.  W.  C.  C.  577,  58  Sol. 
Jo.  686;  Noden  v.  Galloways  [3912]  IK.  B. 
46,  5  B.  W.  C.  C.  7,  [1911]  W.  N.  192,  81 
L.  J.  K.  B.  N.  S.  28,  105  L.  T.  N.  S.  567, 
28  Times  L.  R.  5,  55  Sol.  Jo.  838;  Cameron 
v.  London,  5  B.  W.  C.  C.  416;  Ward  v.  yEtna 
L.  Ins.  Co.  82  Neb.  499,  118  N.  W.  70;  Smith 
v.  Cord  Taton  Colliery  Co.  2  W.  C.  C.  121; 
Conner  v.  Nevada,  188  Mo.  148,  107  Am. 
St.  Rep.  314,  86  S.  W.  256;  Murphy  v. 
Southern  P.  Co.  31  Nev.  120,  101  Pac.  322, 
21  Ann.  Cas.  502;  Dawbarn,  Employers'  Li- 
ability, 106;  Humber  Towing  Co.  v.  Bar- 
clay, 5  B.  W.  C.  C.  142;  Delia  Rocca  v. 
Stanley  Jones  &  Co.  [1914]  W.  C.  &  Ins. 
Rep.  33,  7  B.  W.  C.  C.  101;  David  v.  Wind- 
sor Steam  Coal  Co.  4  B.  W.  C.  C.  177;  Upper 
Forest  &  W.  Steel  &  Tinplate  Co.  v.  Grey, 
3  B.  W.  C.  C.  424 ;  Simpson  v.  Byrne,  47  Ir. 
Law  Times,  27,  6  B.  W.  C.  C.  45;  Harrison 
L.R.A.1916A. 


v.  Barkley,  1  Strobh.  L.  525,  47  Am.  Dec. 
578. 

Mr.  J.  A.  Fish  also  for  respondent  Com- 
mission. 

Messrs.  Quurles,  Speiice,  &  Quarles  for 
other  respondents. 

Kerwin,  J.,  delivered  the  opinion  of  the 
court : 

The  contention  of  the  appellant  is  that 
his  present  disabled  condition  is  the  proxi- 
mate result,  within  the  meaning  of  §  2394 — 
3,  Stat.,  of  the  injury  received  by  him  while 
in  the  course  of  his  employment  by  the  de- 
fendant Plankinton  Packing  Company,  re- 
spondent. While,  on  the  other  hand,  it  is 
insisted  that  plaintiff  recovered  from  the  in- 
juries sustained  while  in  its  employ,  and 
that  the  infection  which  developed  subse- 
quent to  the  boxing  bout  came  as  a  proxi- 
mate result  of  that  bout. 

The  claim  of  appellant  is  that  the  Com- 
mission acted,  in  making  the  order  of  dis- 
missal, in  excess  of  its  powers,  and  that  its 
findings  of  fact  do  not  support  the  order. 
It  is  said  that  the  findings  of  the  Commis- 
sion are  susceptible  of  only  one  legal  infer- 
ence, namely,  that  the  accident  of  April  16, 
1915,  suffered  by  plaintiff,  proximately 
caused  his  disability,  within  the  meaning  of 
the  compensation  act,  and  that  the  order  of 
dismissal  is  based  upon  an  erroneous  con- 
clusion drawn  from  the  facts  found. 

Counsel  for  appellant  seems  to  rely  upon 
Milwaukee  v.  Industrial  Commission,  160 
Wis.  238,  151  N.  W.  247,  as  giving  support 
to  their  contention.  True,  in  that  case  this 
court  held  that  the  right  of  recovery  under 
the  workmen's  compensation  act  is  not  de- 
pendent upon  a  question  of  negligence  or 
upon  the  concomitant  conception  of  negli- 
gence at  common  law,  and  that  the  element 
of  anticipation  characteristic  in  common- 
law  negligence  cases  does  not  obtain  under 
the  workmen's  compensation  act,  so  that  the 
element  of  reasonable  anticipation  is  elimi- 
nated from  proximate  cause  under  the  act, 
and  the  proximate  cause  mentioned  in  the 
workmen's  compensation  act  means  caused, 
in  a  physical  sense,  by  a  chain  of  causation 
which,  as  to  time,  place,  and  effect,  is  so 
closely  related  to  the  accident  that  the  in- 
jury can  be  said  to  be  caused  thereby.  The 
case  is  not  out  of  harmony  with  the  ruling 
of  the  Commission  and  the  court  below  in 
the  instant  case. 

The  contention  of  the  learned  counsel  for 
appellant  is  that  since  the  original  injury 
left  some  trace  of  its  effect,  which  but  for 
the  violent  exercise  of  the  bout  would  have 
been  cured,  still  the  proximate  cause  must 
be  regarded  the  original  injury.  It  seems 
clear  from  the  findings  supported  by  evi- 
dence, that  the  injury  to  the  appellant 


KILL  v.  INDUSTRIAL  COMMISSION. 


[17]   481 


while  in  the  employ  of  the  packing  company 
was  not  the  proximate  cause  of  the  present 
disability.  That  injury  had  been  healed  and 
cured,  sufficient  at  least  that,  had  it  not 
been  for  the  bout  voluntarily  entered  into 
with  knowledge  of  the  danger,  the  injuries 
complained  of  would  not  have  occurred.  The 
Commission,  therefore,  was  justified  in  find- 
ing that  the  bout  proximately  caused  the 
injury  complained  of.  Sutton  v.  Wauwa- 
tosa,  29  Wis.  21,  9  Am.  Rep.  534;  Jucker 
v.  Chicago  &  N.  W.  R.  Co.  52  Wis.  150,  8  N. 
W.  862.  The  injury  must  be  proximately 
caused  by  the  accident,  and  not  self-inflicted,  j 
Stat.  §  2394—3. 

In  the  instant  case  the  bout,  which  was 
subsequent  to  the  original  injury,  intervened 
and  was  the  efficient  cause,  and  had  its 
origin  independent  of  the  original  cause  and 
superseded  it,  and  thereby  became  the  proxi-  j 


mate  cause  of  the  injury.  Brown  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.  54  Wis.  342,  41  Am. 
Rep.  41,  11  N.  W.  356,  911,  7  Am.  Neg.  Cas. 
203;  Barton  v.  Pepin  County  Agri.  Soc.  83 
Wis.  19,  52  N.  W.  1129. 

As  appears  from  the  statement  of  facts, 
the  Commission  found  that,  had  the  appli- 
cant refrained  from  entering  the  boxing  bout 
and  given  his  wrist  only  moderate  exercise 
for  a  few  days  more,  no  serious  result  would 
have  followed.  This  finding  is  supported 
by  the  evidence,  and  esta.blishes  the  fact 
that  the  boxing  bout  proximately  caused 
the  injury  complained  of,  within  the  mean- 
ing of  the  workmen's  compensation  act; 
therefore  the  decision  below  is  right  and 
must  be  affirmed. 

Timlin,  •!.,  took  no  part. 


MICHIGAN    SUPREME    COURT. 


MARY  SPOONER 

v. 

DETROIT      SATURDAY      NIGHT 
PANY,  Plff.   in   Certiorari. 


COM- 


(—  Mich.  — ,  153  N.  W.  657.) 

Courts  —  reviewing  finding  of  Indus- 
trial Accident  Board. 

1.  The  court  will  not  review  or  weigh 
the   evidence   upon  which   a   finding  of  the 
Industrial    Accident    Board    is    founded,    if 
there    is    in    fact   evidence   to    support    the 
finding. 

For  other  cases,  see  Courts,  I.  c,  1,  in  Dig. 
1-52  A*.  S. 

Master  and  servant  —  workmen's  com- 
pensation act  —  injury  not  arising 
out  of  employment. 

2.  An   injury  to  an  engineer  employed 
to  run  the  engine  and  dynamo  in  the  base- 
ment of   a  printing  plant,  while  he   is  at- 
tempting to  operate  the  elevator  for  the  ac- 
commodation of  employees  of  the  plant  on 
the   upper   floors   of   the   building,   without 
the  knowledge  or  request  of  his  employer, 
and  at  a  time  when  he  did  not  need  such 
service,    does   not   arise    out   of   or   in    the 
course  of  his  employment,  within  the  mean- 
ing of  the  workmen's  compensation  act. 
For  other  cases,  see  Master  and  Servant,  II. 

a,  1,  in  Dig.  1-52  N.  8. 

(July  23,  1915.) 

/^  ERTIORARI  to  the  Industrial  Accident 
\J  Board  to  review  its  decision  affirming  an 
award  of  the  Committee  of  Arbitration  in 
favor  of  claimant  in  a  proceeding  for  com- 
pensation under  the  workmen's  compensa- 

Note  — As   to    application    and   effect    of 


tion  act,  for  the  death  of  her  husband. 
Reversed. 

The  facts  are  stated  in  the  opinion. 

Mr.  William  L.  Carpenter,  with  Messrs. 
McGregor  &  Bloomer,  for  plaintiff  in 
certiorari : 

Spooner  was  not  an  employee  of  the  de- 
fendant company  as  a  matter  of  law. 

A  contract  cannot  be  implied  from  the 
mere  fact  that  services  are  rendered. 

Woods  v.  Ayres,  39  Mich.  350,  33  Am. 
Rep.  396;  Godfrey  v.  White,  43  Mich.  171, 
5  N.  W.  243,  11  Mor.  Min.  Rep.  562 ;  Eaton 
v.  Gay,  44  Mich.  431,  38  Am.  Rep.  276,  6 
N.  W.  862;  Covel  v.  Turner,  74  Mich.  408, 
41  N.  W.  1091 ;  Notley  v.  First  State  Bank, 
154  Mich.  681,  118  N.  W.  486;  Re  Haan, 
169  Mich.  146,  134  N.  W.  983;  Heral  v.  Mc- 
Cabe,  171  Mich.  530,  137  N.  W.  237. 

The  injuries  did  not  arise  out  of  and  in 
the  course  of  employment. 

Smith  v.  Lancashire  &  Y.  R.  Co.  [1899] 
1  Q.  B.  141,  68  L.  J.  Q.  B.  N.  S.  51,  47 
Week.  Rep.  146,  79  L.  T.  N.  S.  633,  15 
Times  L.  R.  64;  Lowe  v.  Pearson  [1899] 
1  Q.  B.  261,  68  L.  J.  Q.  B.  N.  S.  122,  47 
Week.  Rep.  193,  79  L.  T.  N.  S.  654,  15  Times 
L.  R.  124;  Reed  v.  Great  Western  R.  Co.  2 
B.  W.  C.  C.  109,  99  L.  T.  N.  S.  781,  [1909] 

A.  C.  31,  78  L.  J.  K.  B.  N.  S.  31,  25  Times 
L.  R.  36,  46  Scot.  L.  R.  700,  53  Sol.  Jo.  31; 
Furniss  v.  Gartside  &  Co.  3  B.  W.  C.  C.  411; 
Cole  v.  Evans,  Son,  Lescher  &  Webb,  4  B. 
W.   C.   C.   138;    Brice  v.   Edward   Lloyd,   2 

B.  W.  C.  C.  26  [1909]  2  K.  B.  804,  25  Times 
L.  R.  759,  127  L.  T.  Jo.  322,  101  L.  T.  N.  S. 
472,  53  Sol.  Jo.  744;  Millers  v.  North  Brit- 
ish Locomotive  Co.  2  B.  W.   C.  C.  80,  46 
Scot.  L.  R.  755  [1909]  S.  C.  698;  Weighill 
v.  South  Heaton  Coal  Co.  4  B.  W.  C.  C.  141 


workmen's  compensation  acts  generally,  see  I  H9H]  2  K.  B.  757,  note;  Jenkinson  v.  Har- 
annotation,  post,  23.  I  risen,  A.  &  Co.  4  B.  W.  C.  C.  194;  Cronin 

L.R.A.1916A.  31 


482   [18] 


WORKMEN'S  COMPENSATION. 


v.  Silver,  4  B.  W.  C.  C.  221 ;  Naylor  v.  Mus- 
grave  Spinning  Co.  4  B.  W.  C.  C.  286. 

Messrs.   Beaumont,    Smith,    &    Harris, 

for  defendant  in  certiorari : 

The  findings  of  fact  by  the  Industrial  Ac- 
cident Board,  to  the  effect  that  Spooner 
was  an  employee  of  defendant  and  that  the 
accident  arose  out  of  and  in  the  course  of 
his  employment,  are  conclusive. 

Rayner  v.  Sligh  Furniture  Co.  180  Mich. 
168,  post,  22,  146  N.  W.  665,  4  N.  C.  C.  A. 
851;  Pigeon's  Case,  216  Mass.  51,  102  N.  E. 
932,  4  N.  C.  C.  A.  516,  Ann.  Gas.  191 5A, 
737;  Diaz's  Case,  217  Mass.  36,  104  N.  E. 
384,  5  N.  C.  C.  A.  609 ;  Donovan's  Case,  217 
Mass.  76,  ]04  N.  E.  431,  4  N.  C.  C.  A.  549, 
Ann.  Gas.  19] 5C,  778;  Bentley's  Case,  217 
Mass.  79,  104  N.  E.  432,  4  N.  C.  C.  A.  559; 
Herrick's  Case,  217  Mass.  Ill,  104  N.  E. 
432,  4  N.  C.  C.  A.  554. 

Spooner  was  an  employee  of  the  defend- 
ant within  the  meaning  of  the  statute. 

40  Cyc.  2808;  Painter  v.  Ritchey,  43  Mo. 
App.  Ill ;  Rayner  v.  Sligh  Furniture  Co. 
180  Mich.  168,  post,  22,  146  N.  W.  665,  4 
N.  C.  C.  A.  851;  Wolfe  v.  Mosler  Safe  Co. 
]39  App.  Div.  848,  124  N.  Y.  Supp.  541; 
Roe  v.  Winston,  86  Minn.  77,  90  N.  W.  122, 
14  Am.  Neg.  Rep.  685;  Anderson  v.  Boyer, 
156  N.  Y.  93,  50  N.  E.  976;  Higgins  v. 
Western  U.  Teleg.  Co.  156  N.  Y.  75,  66  Am. 
St.  Rep.  537,  50  N.  E.  500,  4  Am.  Neg.  Rep. 
320;  Rozelle  v.  Rose,  3  App.  Div.  132,  39 
N.  Y.  Supp.  363 ;  2  Labatt,  Mast.  &  S.  fl  535. 

Spooner  operated  the  elevator  as  a  part 
of  his  general  employment  incidental  to  his 
work  as  engineer  of  the  plant,  and  his  in- 
juries arose  out  of  and  in  the  course  of  it. 

Broderick  v.  Detroit  Union  R.  Station  & 
Depot  Co.  56  Mich.  261,  56  Am.  Rep.  382, 
22  N.  W.  802 ;  Miner  v.  Franklin  County 
Teleph.  Co.  83  Vt.  311,  26  L.R.A.(N.S.) 
1195,  75  Atl.  653;  M'Quibban  v.  Menzies,  37 
Scot.  L.  R.  526,  (1900)  2  F.  732,  7  Scot.  L. 
T.  432;  Ruegg,  Employers'  Liability  & 
Workmen's  Compensation,  p.  346. 

Stone,  J.,  delivered  the  opinion  of  the 
court : 

This  is  a  claim  made  by  Mary  Spooner, 
widow  of  James  Spooner,  against  the  De- 
troit Saturday  Night  Company,  for  com- 
pensation for  the  death  of  her  husband, 
under  act  No.  10,  Public  Acts  of  1912, 
known  as  the  workmen's  compensation  act. 
The  Detroit  Saturday  Night  Company,  hav- 
ing previously  suffered  a  fire  in  its  plant  in 
the  city  of  Detroit,  on  Monday,  February  3, 
1913,  entered  into  a  contract  with  the  Winn 
&  Hammond  Company,  through  T.  H.  Col- 
lins, its  receiver,  as  follows: 

Detroit,  Mich.,  Monday,  February  3,  1913. 

Agreement  between  T.  H.  Collins,  receiver 
L.R.A.1916A. 


for  Winn  &  Hammond  Company  and  the  De- 
troit Saturday  Night  Company,  city  of 
Detroit,  state  of  Michigan  and  county  of 
Wayne,  on  the  3d  day  of  February,  1913. 

I  agree  for  such  a  period  as  the  said  Winn, 
&  Hammond  Company  shall  be  under  my 
control,  and  until  such  time  as  twenty-four 
hours'  notice  shall  be  given  to  the  Detroit 
Saturday  Night  Company,  to  furnish  the 
following  equipment  and  power  for  same  at 
the  prices  and  under  the  conditions  named 
in  this  instrument:  Cylinder  press  at  75- 
cents  per  hour;  Gordon  press  at  33 J  cents 
per  hour ;  power  cutting  machine  at  50  cents 
per  hour ;  stitching  machine  at  50  cents  per 
hour;  folding  machine  at  50  cents  per 
hour;  perforator  at  50  cents  per  hour;  the 
use  of  type,  tones,  and  material  necessary 
for  composition  work  at  $3  per  day. 

I  also  agree  to  furnish  elevator  service, 
telephone  service,  and  office  service,  which 
shall  consist  of  providing  cards  and  keeping; 
time  of  such  employees  as  the  said  Detroit 
Saturday  Night  Company  may  assign  to- 
this  plant  for  operating  machinery  rented 
to  the^m,  at  the  rate  of  $30  per  week. 

It  is  further  understood  and  agreed  be- 
tween both  parties  that  no  type  or  other 
material  shall  be  removed  from  the  plant  of 
the  Winn  &  Hammond  Company  by  the  said 
Detroit  Saturday  Night  Company. 

It  is  further  agreed  that,  should  the  De- 
troit Saturday  Night  Company  wish  to  oper- 
ate the  machinery  in  this  plant  at  any  time- 
other  than  the  stated  working  hours  of  the 
Winn  &  Hammond  Company,  which  are  7 
A.  M.  to  11:30  A.  M.  and  12:15  P.  M.  to  5 
P.  M.,  that  the  charge  for  power  service  shall 
be  $1.00  per  hour  in  addition  to  the  prices 
above  quoted,  and  that  the  Detroit  Saturday- 
Night  Company  agree  to  furnish  a  compe- 
tent engineer  to  tend  boiler  and  perform 
such  other  duties  as  usually  fall  to  a  man. 
in  that  capacity. 

It  shall  be  optional  with  the  Detroit 
Saturday  Night  Company  how  much  of  this- 
machinery  they  shall  operate,  and  they 
agree  to  give  ample  notice  when  any  ad- 
ditional machinery  shall  be  wanted  or  dis- 
continued. 

The  said  Detroit  Saturday  Night  Com- 
pany further  agrees  to  abide  by  and  per- 
form any  and  all  orders  of  the  bankruptcy 
court  concerning  its  occupancy  and  use  of 
said  property. 

[Signed]     H.  H.  Nimmo, 

Vice  Pres.,  Detroit  Saturday  Night  Co. 

[Signed]     Winn  &  Hammond  Co., 

Per  T.  H.  Collins. 

Approved :     Lee  E.  Joslyn,  Referee. 

The  Detroit  Saturday  Night  Company,  in- 
accordance  with  the  terms  of  the  foregoing 
contract,  employed  an  engineer  by  the 


SPOONER  v.  DETROIT  SATURDAY  NIGHT  CO. 


[19]  483 


name  of  Leonard  J.  McCabe  to  operate  the 
engine  in  said  plant  on  the  night  of  Febru- 
ary 6,  1913,  that  being  the  first  night  that 
said  company  operated  said  plant.  This 
engineer  was  employed  on  Wednesday, 
February  5th.  He  went  to  the  plant  of  the 
Winn  &  Hammond  Company  on  Wednes- 
day, February  5th,  to  look  over  the  plant 
preparatory  to  taking  charge  of  it  on  the 
night  of  February  6th.  On  this  occasion  he 
told  James  Spooner,  then  in  charge  of  the 
plant,  that  he  was  going  to  take  charge  of 
the  same  on  Thursday  night,  February  6th. 
On  Thursday,  February  6th,  at  about  5 
o'clock,  McCabe  went  to  the  plant  for  the 
purpose  of  taking  charge  that  night.  He 
saw  Spooner,  and  the  latter  objected  and 
desired  himself  to  operate  the  engine.  Mc- 
Cabe testified  that  Spooner  told  him  that 
they  were  going  to  run  about  9  o'clock,  and 
that  he  (Spooner)  would  run  himself  that 
night,  and  it  was  not  necessary  for  McCabe 
to  stay.  McCabe  then  went  away  and 
Spooner  did  actually  operate  the  engine  in 
said  plant  on  the  night  of  February  6,  1913. 
James  Spooner,  husband  of  claimant,  was 
a  stationary  engineer  in  the  employ  of  the 
Winn  &  Hammond  Company,  and  had  been 
in  its  employ  as  such  stationary  engineer 
for  a  period  of  twenty  years  or  more,  prior 
to  said  February  6th.  His  duties  were  to 
run  the  engine  and  dynamo  in  the  plant. 
It  was  not  a  part  of  his  duties  to  run  the 
elevator,  but  he  sometimes  did  so  for  his 
own  convenience,  as  did  other  employees,  in 
the  absence  of  the  regular  elevator  man,  or 
when  requested  by  the  employer  in  further- 
ing its  work.  On  the  night  in  question,  or 
about  2  o'clock  in  the  morning  of  February 
7th,  said  James  Spooner  left  his  place  of 
duty  in  the  engine  room  in  the  basement  of 
said  plant  and  went  to  the  upper  floors  of 
said  building.  In  going  to  said  upper  floors 
he  walked  up  the  stairway.  Upon  the 
second  floor  he  met  Otto  Loeffelbein,  John 
C.  Hussey,  and  a  Mr.  Wheeler,  employees  of 
the  Detroit  Saturday  Night  Company,  and 
stopped  with  them  and  had  a  casual  conver- 
sation. Shortly  after  James  Spooner  came 
upon  said  second  floor  said  Hussey  and  the 
others  started  to  go  up  the  stairway  from 
the  second  to  the  third  floor  of  said  build- 
ing for  the  purpose  of  getting  some  stools 
to  sit  upon  at  their  work;  and  thereupon 
said  James  Spooner  offered  to  take  them  up 
on  the  elevator,  saying:  "What's  the  use  of 
your  walking;  ride  up."  And  said  Spooner 
did  then  and  there  open  the  door  of  the 
elevator  which  stood  there,  and  the  said 
employees  got  upon  the  same,  and  Spooner 
operated  it  in  such  a  manner  as  to  cause  it 
to  ascend.  The  elevator  passed  one  floor  in 
safety,  and  just  as  it  was  passing  the  next 
floor  James  Spooner  received  the  injuries 
L.R.A.1916A. 


which  caused  his  death.  There  was  no  light 
whatever  upon  the  elevator,  and  the  men 
upon  it  were  unable  to  tell  the  cause  of  the 
accident  from  which  Spooner  suffered  the 
injuries  which  caused  his  death.  The  claim- 
ant made  demand  upon  the  appellant  for 
payment  to  her  of  compensation  because  of 
the  death  of  said  James  Spooner,  under  the 
terms  of  said  act.  The  appellant  denied  all 
liability  to  said  Mary  Spooner  under  said 
act.  An  arbitration  was  had  under  the  act, 
and  the  committee  of  arbitration  awarded 
said  Mary  Spooner  the  sum  of  $2,520.  The 
appellant  filed  a  claim  of  review  of  the 
decision  of  said  committee  with  the  In- 
dustrial Accident  Board,  and  said  decision 
of  said  committee  was  duly  reviewed  by 
said  Industrial  Accident  Board,  and  on  June 
10,  1913,  said  Board  made  a  decision  affirm- 
ing the  decision  of  said  arbitration  com- 
mittee. The  case  is  here  for  review  upon 
certiorari. 

The  appellant  insists  that  it  did  not  make 
any  contract,  express  or  implied,  of  employ- 
ment with  said  James  Spooner,  and  that  in 
his  operation  of  said  engine  on  the  night  of 
February  6,  1913,  he  was  acting  as  the 
employee  of  Winn  &  Hammond  Company, 
and  not  as  the  employee  of  the  Detroit 
Saturday  Night.  The  Industrial  Accident 
Board,  in  its  fourth  finding  of  fact,  found 
as  follows:  "Mr.  Spooner  was  engaged  in 
operating  the  engine  in  the  plant,  for  Winn 
&  Hammond  Company,  until  5  o'clock  in  the 
afternoon  of  February  6th,  and  from  that, 
hour  until  he  met  his  death,  at  about  2: 
o'clock  in  the  morning  of  February  7th,  he- 
was  in  the  employ  of  the  Detroit  Saturday 
Night  Company,  being  engaged  that  night  in 
operating  the  plant  as  engineer  in  getting 
out  its  paper,  and  that  Spooner  at  the  time 
of  the  accident  was  in  fact  an  employee  of 
the  Detroit  Saturday  Night." 

It  is  the  claim  of  appellant  that  there 
was  no  evidence  whatever  to  support  thi* 
finding  of  fact.  The  said  Industrial  Acci- 
dent Board  found,  as  matter  of  law,  that  the- 
injury  received  by  said  James  Spooner,  and 
which  caused  his  death,  arose  out  of  and 
in  the  course  of  his  employment  by  the  De- 
troit Saturday  Night  Company,  and  that 
said  employment  was  not  a  casual  employ- 
ment within  the  meaning  of  said  act,  so  as 
to  debar  Mary  Spooner  from  recovering 
compensation  for  the  death  of  James 
Spooner. 

By  appropriate  assignments  of  error  the 
following  propositions  are  presented  by  the 
appellant : 

(1)  That  Spooner  was  not  an  employee 
of  the  Detroit  Saturday  Night  Company  as 
matter  of  law. 

(2)  That  the  injuries  did  not  arise  out  ofr 
and  in  the  course  of  his  employment. 


484  [20] 


WORKMEN'S  COMPENSATION. 


(3)  That  if  Spooner  was  an  employee  of 
the  Detroit  Saturday  Night  Company,  his 
employment  was  a  casual  employment. 

1.  On  the  first  proposition   urged  by  ap- 
pellant,  a  careful   reading  of  the   evidence 
contained  in  this  record  leads  us  to  the  con- 
clusion that  we  cannot  say  that  there  was 
no    evidence    to    support    the    finding    that 
Spooner  was  an   employee    of    the    Detroit 
Saturday  Night  Company.     Under  the  stat- 
ute, as  construed  by  this  court,  if  there  was 
evidence  to  support  the  finding,  we  will  not 
review  or  weigh  that  evidence.     Rayner  v. 
Sligh  Furniture  Co.  180  Mich.  168,  post,  22, 
146  N.  W.  665,  4  N.  C.  C.  A.  851.    We  think 
there  was  some  evidence  in  support  of  this 
ifinding. 

2.  Did   the   injuries  arise   out  of   and   in 
the   course    of   his    employment  ?      The    ap- 
pellant  needed    and   had    employed    an    en- 
;gineer  to   operate   the   engine   and   dynamo 
upon  the  night  in  question.    It  was  not  con- 
•cerned  with  and  did  not  need  the  use  of  the 
•elevator.     As  matter  of  fact,  the  agreement 
had   provided  that  the   Winn   &   Hammond 
Company  was  to  furnish  the  elevator  serv- 
ice, but  no  such  service  was  needed  by  ap- 
pellant that  night.     If  we  are  right  in  say- 
ing, under  the  first  proposition,  that  there 
was  evidence  that  Spooner  was  in  the  em- 
ploy of  the  appellant,  that  employment  was 
solely   to   operate  the   engine   and   dynamo. 
The  evidence  is  silent  as  to  any  other  duty 
imposed  upon  him  by  the  appellant.     The 
engine  room  was  located  in  the  basement  of 
the  building;   and,  so  far    as    this    record 
shows,  Spooner  had  no  occasion  to  leave  it, 
and  had  no  duty  to  perform  upon  the  upper 
floors  of  the  building  during  the  night  of 
the   injury.     Under   the    evidence    he    had 
gone   upon    these   upper   floors    purely    and 
solely  to  visit  with  the  men  working  there. 
The  evidence  is  undisputed  that  he  walked 
up  the  stairway.    He  owed  no  duty  to  those 
men,  or  to  anybody,  to  take    them    to    the 
upper  floors  upon  the  elevator;  neither  was 
he  requested  to  do  so.     It  was  doubtless  a 
friendly  act  upon  his  part,  which  did  not 
tend  to  further  the  business    of    appellant 
At  the  time  of  the  injury  we  think  that  he 
was  engaged  in  an  act  outside  of,  and  not 
in  the  course  of,  his  employment,  and  the 
injuries   he  received  and  which   caused  his 
death    did    not    arise    out    of    and    in    the 
course   of   his    employment.      The    elevator 
shaft  was  in  pitch  darkness,  by  the  undis- 
puted evidence,  and  in  using  it  he  not  only 
risked  his  own  life,  but  that  of  the  men  he 
took  upon  the  elevator  with  him.     Had  he 
remained    in    the    place    where    his    duties 
called  him  and    attended    to    those    duties, 
he  would  not  have  been  injured,  so  far  as 
this  record  shows.    The  material  question  is 
not  what  he  had  done  at  times,  for  his  own 
L.R.A.1916A. 


convenience  or  otherwise,  while  in  the  em- 
ploy of  Winn  &  Hammond  Company,  but 
the  pertinent  question  is:  What  was  he 
employed  to  do  upon  this  night?  Mani- 
festly, to  run  and  care  for  the  engine  and 
dynamo.  This  injury  occurred  while  he  was 
away  from  his  work,  and  while  he  was  a 
voluntary  visitor  to  the  employees  of  the 
appellant,  and  the  act  was  for  his  own 
pleasure  or  satisfaction. 

Counsel  for  appellee  in  support  of  their 
claim  have  called  our  attention  to  the  case 
of  Miner  v.  Franklin  County  Teleph.  Co.  83 
Vt.  311,  26  L.R.A.(N.S.)  1195,  75  Atl.  653. 
In  that  case  the  plaintiff  was  an  employee 
of  the  defendant  telephone  company.  On 
the  day  of  the  accident  defendant's  fore- 
man said  to  the  linemen,  of  which  the  plain- 
tiff was  one,  that  they  would  go  down  and 
splice  the  cable  at  a  certain  point,  and  all 
went  together  to  the  place.  On  arriving 
there  the  foreman  told  the  plaintiff  and  an- 
other lineman  to  go  to  a  certain  place  and 
get  a  ladder.  They  were  unable  to  get  it, 
and  the  plaintiff  so  reported  to  the  foreman 
on  their  return.  The  foreman  was  then  on 
the  cable  seat,  with  his  materials  at  hand, 
and  was  just  commencing  the  work  of  splic- 
ing. After  watching  him  awhile,  the  plain- 
tiff said  he  guessed  he  would  go  up  and 
help  him,  and  received  no  reply.  The  plain- 
tiff then  ascended  the  pole  and  stood  on  an 
upper  cross-arm  and  handed  the  sleeves  to 
the  foreman  as  he  needed  them,  the  foreman 
taking  them  from  him  and  using  them  as  he 
proceeded  with  the  splicing.  After  working 
in  this  manner  for  about  twenty  minutes, 
the  foreman  placed  the  bag  containing  the 
sleeves  on  the  other  side  of  him,  which  put 
them  beyond  the  plaintiff's  reach;  and, 
after  looking  on  awhile,  the  plaintiff  said 
he  would  go  down,  and  proceeded  to  do  so, 
receiving  therein  the  injury  complained  of. 
These  were  the  circumstances  tending  to 
show  that  the  plaintiff  was  in  the  perform- 
ance of  his  duty  when  he  received'  the  in- 
jury. In  deciding  the  case  for  the  plaintiff 
the  court  said:  "The  voluntary  offer  of  a 
willing  servant  to  make  himself  useful  in  a 
matter  not  covered  by  any  express  com- 
mand, when  the  proffered  service  is  accept- 
ed by  his  superior,  although  not  by  an 
approval  expressed  in  words,  cannot  be  said, 
as  matter  of  law,  to  put  the  servant  outside 
the  limits  of  his  employment." 

We  think  the  case  readily  distinguishable 
from  the  instant  case.  In  fact  it  might  be 
said  the  plaintiff  there  was  in  the  perform- 
ance of  and  carrying  on  the  very  work  for 
which  he  was  employed,  to  wit :  He  was  as- 
sisting his  foreman,  who  undoubtedly  rep- 
resented the  master.  In  this  instant  case 
Spooner  was  rendering  no  service  which 
was  either  accepted  by  or  known  to  his  su- 


SPOONER  v.  DETROIT  SATURDAY  NIGHT  CO. 


[21]   485 


perior,  but  was  engaged  in  a  voluntary, 
friendly  act  entirely  outside  the  scope  of  his 
employment  upon  the  night  in  question. 

Our  attention  is 'also  called  by  appellee  to 
the  case  of  M'Quibban  v.  Menzies,  37  Scot. 
L.  R.  page  526,  (1900)  2  F.  732,  7  Scot.  L. 
T.  432.  In  that  case  a  workman  was  en- 
gaged as  a  laborer  in  a  steam  joinery,  his 
duty  being  to  carry  wood  from  the  machine 
men  to  the  joiners  and  to  clean  and  sweep 
up  the  floor  of  the  machine  room.  A  belt 
in  connection  with  one  of  the  machines  be- 
came loose,  and  he  went,  without  being 
asked  so  to  do,  to  assist  the  machine  man 
in  replacing  the  belt  upon  the  shaft.  At  the 
request  of  the  machine  man  the  workman 
ascended  a  ladder  to  try  and  replace  the 
belt,  and,  his  arm  being  caught  in  the  belt, 
he  was  drawn  up  into  the  shaft  and  re- 
ceived fatal  injuries.  It  was  admitted  that 
had  a  foreman  been  present  he  might  have 
ordered  the  workman  to  do  this  act,  but  no 
other  person  had  authority  to  order  him  to 
do  so.  Held,  that  the  accident  was  one 
arising  out  of  and  in  the  course  of  his  em- 
ployment in  the  sense  of  the  workmen's  com- 
pensation act.  The  court  said:  "The  ques- 
tion of  law  which  we  have  to  decide  is 
whether  the  deceased  workman  was  injured 
by  an  accident  arising  out  of  and  in  the 
course  of  his  employment,  and  although 
that  would  appear  primarily  to  be  a  ques- 
tion of  fact,  there  is  no  doubt  that  in  cases 
of  this  kind  questions  of  fact  and  law  some- 
times run  into  one  another.  The  words 
'arising  out  of  and  in  the  course  of  the  em- 
ployment' appear  to  me  to  be  sufficient  to 
include  something  which  occurs  while  the 
workman  is  in  his  master's  employment  and 
on  his  master's  work,  although  he  is  doing 
something  in  the  interest  of  his  master  be- 
yond the  scope  of  what  he  was  employed  to 
do.  The  act  does  not  say,  'when  doing  the 
work  which  he  was  employed  to  perform' 
but  it  is  a  fair  inference  that  if  it  had  been 
intended  to  limit  the  right  to  compensation 
to  such  accidents,  different  language  would 
have  been  used  from  that  which  occurs  in 
the  act.  It  must  be  assumed,  therefore, 
that  the  legislature  used  language  of  wider 
scope  to  include  cases  where  a  workman 
intervenes  to  do  something  useful  and  help- 
ful to  his  master,  although  outside  the 
special  duties  which  he  is  employed  to  per- 
form." 

After  citing  cases,  the  court  concluded: 
"The  action  of  the  workman  in  this  case  ap- 
pears to  me  to  have  been  a  natural  and  help- 
ful intervention  in  the  conduct  of  his  mas- 
ter's business,  and  accordingly  I  am  of  the 
opinion  that  the  question  should  be  an- 
swered in  the  affirmative." 

Here  also  it  clearly  appeared  that  the 
servant  was  doing  something  in  the  interest 
L.R.A.1936A. 


of  his  master,  or  in  the  language  of  the 
opinion,  "something  useful  and  helpful  to 
his  master."  Such  was  not  the  fact  in  the 
instant  case,  as  we  have  already  stated. 

Our  attention  is  also  called  to  language 
used  by  Ruegg  in  his  work  on  Employers' 
Liability  and  Workmen's  Compensation,  at 
page  346,  where  that  author  says:  "The 
words  'arising  out  of  the  employment'  may 
be  satisfied  if  it  is  shown  that  the  occupa- 
tion in  which  the  workman  was  engaged, 
though  not  strictly  part  of  his  duties,  was- 
being  done  in  the  mutual  interest  of  the 
employer  himself"  (citing  cases). 

Here  the  same  distinction  is  made  which 
we  have  pointed  out  above.  The  case  of 
M'Quibban  v.  Menzies,  supra,  has  been  re- 
ferred to  as  an  "Emergency  Case."  Such 
cases  seem  to  be  an  exception  to  the  general 
rule  where  a  workman,  for  the  protection  of 
his  master's  interest,  acts  in  an  emergency. 
Manifestly,  there  was  no  emergency  in  the 
instant  case. 

We  are  of  opinion  that  the  cases  cited  by 
appellant  are  applicable  to  the  instant  case, 
although  the  contrary  is  claimed  by  ap- 
pellee. Smith  v.  Lancashire  &  Y.  R.  Co. 
[1899]  1  Q.  B.  141,  68  L.  J.  Q.  B.  N.  S.  51,  47 
Week.  Rep.  146,  79  L.  T.  N.  S.  633,  15 
Times  L.  R.  64.  In  that  case  a  ticket 
taker  in  the  employ  of  the  railway,  after  he 
had  collected  his  tickets  from  a  train,  got 
upon  the  footboard  of  the  train  after  it  had 
started,  to  speak  to  a  woman  passenger,  and 
was  injured.  It  was  held  that  the  accident 
was  not  one  arising  out  of  and  in  the  course 
of  his  employment.  This  case  was  disposed 
of  upon  the  principle  that  where  the  work- 
man is  doing  an  act  entirely  for  his  own 
purposes,  and  in  no  way,  either  directly  or 
indirectly,  in  the  interest  of  his  employer, 
then,  however  harmless  such  act  may  be,  he 
loses  the  protection  of  the  act  whilst  he  is 
so  engaged.  In  Reed  v.  Great  Western  R. 
Co.  [3909]  A.  C.  31,  the  court  said:  "It  is 
not  that  he  violated  a  rule,  but  that  the  ac- 
cident did  not  arise  out  of  or  take  place  in 
the  course  of  the  employment  at  all.  It  took 
place  while  for  the  moment  he  quitted  his 
employment." 

In  Moore  v.  Manchester  Liners  [1909]  1 
K.  B.  417,  78  L.  J.  K.  B.  N.  S.  463,  100  L. 
T.  N.  S.  164,  25  Times  L.  R.  202,  a  fireman 
left  the  ship  and  went  ashore  to  procure 
articles  which  were  necessary  for  his  own 
convenience  and  comfort.  On  returning  he 
fell  from  a  ladder  fastened  to  the  ship's  side 
and  resting  on  the  quay  below.  This  was 
the  only  means  of  access  to  the  ship.  In 
giving  judgment  reversing  the  county  court 
judge,  who  had  awarded  compensation, 
Cozens-Hardy,  M.  R.,  said :  "It  seems  to  me 
he  [the  seaman]  was  outside  the  protection 


486   [22] 


WORKMEN'S  COMPENSATION. 


given  by  the  act  from  the  moment  he  left 
the  ship  until  he  got  back  onto  the  ship." 

See  also  Lowe  v.  Pearson  [1899]  1  Q.  B. 
261,  68  L.  J.  Q.  B.  N.  S.  122,  47  Week.  Rep. 
193,  79  L.  T.  N.  S.  654,  15  Times  L.  R.  124; 
Reed  v.  Great  Western  R.  Co.  [1909]  A.  C. 
31,  2  B.  W.  C.  C.  109,  99  L.  T.  N.  S.  781,  78 
L.  J.  K.  B.  N.  S.  31,  25  Times  L.  R.  36,  46 
Scot.  L.  R.  700,  53  Sol.  Jo.  31. 

Of  this  case  Mr.  Ruegg  says  [p.  353]. 
"It  is  a  decision  of  the  House  of  Lords,  and 
may  be  said  to  establish  finally  the 
principle  propounded  in  the  first  decision 
given  on  the  words,  viz.:  Smith  v.  Lanca- 
shire &  Y.  R.  Co.  supra.  This  principle  is 
that  where  the  workman  is  doing  an  act  en- 
tirely for  his  own  purposes,  and  in  no  way, 


either  directly  or  indirectly,  in  the  interest 
of  his  employer,  then,  however  harmless 
such  an  act  may  be,  he  loses  the  protection 
of  the  act  whilst  he  is  So  engaged." 

Many  other  cases  might  be  cited  to  the 
same  effect. 

We  are  of  opinion  that  there  was  no  evi- 
dence to  support  the  conclusion  that  the  in- 
jury arose  out  of  and  in  the  course  of 
Spooner's  employment,  and  for  that  reason 
appellant  is  under  no  liability  to  the  claim- 
ant in  this  case.  This  conclusion  renders  it 
unnecessary  for  us  to  consider  the  third 
proposition.  The  decision  of  the  Industrial 
Accident  Board  is  therefore  reversed. 

This  case  was  originally  assigned  to  the 
late  Chief  Justice  McAlvay. 


MICHIGAN  SUPREME  COURT 

LIDA  RAYNER 

v. 

SLIGH  FURNITURE  COMPANY,  Plff.  in 
Certiorari. 

(180  Mich.  168,  146  N.  W.  665.) 

Master  and  servant  —  workmen's  com- 
pensation act  —  collision  with  fellow 
employee. 

An  injury  to  an  employee  by  collision 
with  another  employee,  hidden  from  view  by 
obstructions,  in  running  to  register  on  a 
time  clock,  which  he  was  required  to  do  be- 
fore leaving  the  building  when  the  quitting 
signal  was  given,  arises  out  of  and  in  the 
course  of  his  employment  within  the  mean- 
ing of  the  workmen's  compensation  act. 
For  other  cases,  see  Master  and  Servant, 

II.  a,  1,  in  Dig.  1-52  N.  8. 

(McAlvay,  Ch.  J.,  dissents.) 
(April  7,  1914.) 

CERTIORARI  to  the  Industrial  Accident 
Board  to  review  an  award  by  an  arbi- 
tration committee  in  favor  of  applicant  in 
a  proceeding  under  the  workmen's  com- 
pensation act  for  the  death  of  her  husband. 
Affirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  William  A.  Mulhern,  with  Mr. 
Francis  D.  Campau,  for  plaintiff  in  cer- 
tiorari : 

The  accident  to  Adelbert  Rayner  did  not 
arise  out  of  or  in  the  course  of  his  em- 
ployment. 

Smith  v.  Lancashire  &  Y.  R.  Co.  [1899]  1 
Q.  B.  141,  1  W.  C.  C.  1,  68  L.  J.  Q.  B.  N.  S.  j 
51,    47    Week.    Rep.    146,    79    L.    T.    N.    S. 
633,  15  Times  L.  R.  64 ;  Shaw  v.  Wigan  Coal 
&  I.  Co.  3  B.  W.  C.  C.  81;  Murphy  v.  Ber- 


Note.  —  For  annotation  on  the  workmen's 
compensation  acts,  see  post,  23. 
L.R.A.1916A. 


wick,  2  B.  W.  C.  C.  103,  43  Ir.  Law  Times, 
126;  Morrison  v.  Clyde  Nav.  Co.  [1909]  S. 
C.  59,  2  B.  W.  C.  C.  99,  46  Scot.  L.  R.  38. 

Messrs.  Norris,  McPherson,  &  Har- 
rington, for  defendant  in  certiorari: 

The  injury  arose  out  of  and  in  the  course 
of  Rayner's  employment. 

Fitzgerald  v.  Clarke  [1908]  2  K.  B.  796, 
99  L.  T.  N.  S.  101,  1  B.  W.  C.  C.  197,  77 
L.  J.  K.  B.  N.  S.  1018;  Whitehead  v. 
Reader  [1901]  2  K.  B.  48,  70  L.  J.  K.  B. 
N.  S.  546,  65  J.  P.  403,  49  Week.  Rep.  562, 
84  L.  T.  N.  S.  514,  17  Times  L.  R.  387; 
Smith  v.  Lancashire  &  Y.  R.  Co.  [1899]  1 
Q.  B.  141,  1  W.  C.  C.  1,  68  L.  J.  Q.  B. 
N.  S.  51,  47  Week.  Rep.  146,  79  L.  T.  N. 
S.  633,  15  Times  L.  R.  64;  Shaw  v.  Wigan 
Coal  &  I.  Co.  3  B.  W.  C.  C.  81 ;  Murphy  v. 
Berwick,  2  B.  W.  C.  C.  103,  43  Ir.  Law 
Times,  126;  Morrison  v.  Clyde  Nav.  Co. 
[1909]  S.  C.  59,  2  B.  W.  C.  C.  99,  46  Scot. 
L.  R.  38. 

Kuhn,  J.,  delivered  the  opinion  of  the 
court : 

This  case  is  brought  here  by  certiorari 
to  the  Industrial  Accident  Board.  Adelbert 
Rayner,  the  applicant's  husband,  was  in- 
jured while  in  respondent's  factory  in  the 
city  of  Grand  Rapids.  About  100  carvers 
and  cabinet  workers  were  employed  on  the 
third  floor  of  the  factory,  and,  on  the  blow- 
ing of  the  noon  whistle,  each  workman  was 
required  to  proceed  to  the  end  of  the  room 
and  punch  the  time  clock  before  leaving 
for  dinner.  Mr.  Rayner,  who  was  working 
on  this  floor,  about  150  feet  from  the  time 
clock,  on  November  5,  1912,  when  the 
whistle  blew  at  noon,  started  on  a  run 
from  his  bench  to  the  clock  to  punch  it. 
After  proceeding  about  30  feet,  he  collided 
with  Martin  De  Vos,  a  fellow  employee, 
whom  he  could  not  see  because  of  drawers 
which  were  piled  up  on  the  floor.  This  re- 
sulted in  Rayner  fracturing  or  injuring  one 


KAYNER  v.  SLIGH  FURNITURE  CO. 


[23]   487 


or  more  of  his  ribs.  The  injury  to  his  side 
and  ribs  affected  the  pleura  of  his  lungs,  and 
from  the  inflammation  or  irritation  which 
followed  the  lungs  became  affected,  resulting 
in  Mr.  Rayner's  death.  There  had  been  no 
general  notice  printed  or  posted  of  a  rule 
against  running  to  the  time  clock,  but,  about 
a  year  previous  to  the  accident,  Rayner  had 
been  told  by  his  foreman,  Hicks,  not  to 
run  to  the  clock.  There  was  testimony 
that  the  rule  against  running  had  not  been 
enforced,  and  no  employee  had  been  dis- 
charged because  of  doing  so.  An  award  to 
claimant,  who  was  left  as  his  dependent, 
was  made  by  a  committee  on  arbitration, 
and  upon  review  was  affirmed  by  the  In- 
dustrial Accident  Board. 

It  is  the  contention  of  the  respondent 
and  appellant  that  the  facts  indicate  that 
the  accident  and  the  resulting  injury  arose 
out  of  an  act  independent  of  the  employ- 
ment, in  direct  violation  of  a  rule  of  the 
company,  and  solely  for  his  own  pleasure 
or  convenience.  With  reference  to  the  rule, 
the  Commission  made  a  finding  that  such  a 
rule  had  not  been  enforced,  and  its  general 
violation  had  been  acquiesced  in  by  the  em- 
ployer. There  being  evidence  to  support 
this  finding  of  fact,  by  the  terms  of  the 
act  (part  3,  §  12,  Act  No.  10,  P.  A.,  Extra 
Session  1912)  2  How.  Stat.  2d  ed.  §§  3939 
et  seq.,  it  becomes  conclusive,  and  as  a  re- 
sult eliminates  the  consideration  of  the 
question  as  to  whether  the  injury  arose  by 
reason  of  the  intentional  and  wilful  mis- 
conduct of  Rayner.  Rumboll  v.  Nunnery 
Colliery  Co.  80  L.  T.  N.  S.  42,  1  W.  C.  C. 
28,  63  J.  P.  132. 

At  the  time  of  the  accident,  Rayner  was 
in  the  performance  of  a  duty  imposed  upon 
him  by  his  employer.  When  the  noon 
whistle  blew,  it  was  obligatory  upon  him, 
before  leaving  the  place  of  his  employment, 
to  punch  the  time  clock.  The  performance 


of  this  duty,  if  not  the  proximate  cause, 
was  a  concurring  cause  of  his  injury.  In 
Fitzgerald  v.  Clarke  (1908)  99  L.  T.  N.  S. 
101,  1  B.  W.  C.  C.  197,  Buckley,  L.  J.,  stated 
the  rule  as  follows:  "The  words  'out  of 
and  in  the  course  of  the  employment'  are 
used  conjunctively,  not  disjunctively,  and, 
upon  ordinary  principles  of  construction, 
are  not  to  be  read  as  meaning  'out  of,'  that 
is  to  say,  'in  the  course  of.'  The  former 
words  must  mean  something  different  from 
the  latter  words.  The  workman  must  satis- 
fy both  the  one  and  the  other.  The  words 
'out  of  point,  I  think,  to  the  origin  or  cause 
of  the  accident ;  the  words  'in  the  course 
of  to  the  time,  place,  and  circumstances  un- 
der which  the  accident  takes  place.  The 
former  words  are  descriptive  of  the  char- 
acter or  quality  of  the  accident.  The  lat- 
ter words  relate  to  the  circumstances  under 
which  an  accident  of  that  character  or  qual- 
ity takes  place.  The  character  or  quality 
of  the  accident  as  conveyed  by  the  words 
'out  of  involves,  I  think,  the  idea  that  the 
accident  is  in  some  sense  due  to  the  em- 
ployment." We  are  well  satisfied  that  the 
accident  was  an  industrial  accident  within 
the  meaning  of  the  compensation  act,  and 
arose  "out  of  and  in  the  course  of  his  em- 
ployment." Whitehead  v.  Reader  [1901] 
2  K.  B.  48,  70  L.  J.  K.  B.  N.  S.  546,  65  J. 
P.  403,  49  Week.  Rep.  562,  84  L.  T.  N.  S. 
514,  17  Times  L.  R.  387. 

The  judgment  and  decision  of  the  Indus- 
trial Accident  Board  is  affirmed,  with  costs 
against  appellant. 

Brooke,  Stone,  Bird,  Ostrander, 
Steere,  and  Moore,  JJ.,  concurred  with 
Kiihn.  J. 

McAlvay,  Ch.  J.,  dissenting: 
I  do  not  think  that  this  was  an  industrial 
accident  within  the  statute. 


TABLE  OF  CASES  KEPOKTED  AND  CITED 


Aberdeen  Steam  Traveling  &  Fishing  Co.  v. 

Peters  (1899)   1  Sc.  Sess.  Cas.  5th 

series,  786,  36  Scot.  L.  R.  573,  6 

Scot.  L.  T.  378 — 204. 
Aberdeen    Steam    Traveling    Co.    v.   Kemp, 

cited  in  Ruegg  Employers'  Liabil- 
ity, 4th  ed.  p.  211,  note   (x) — 204. 
Abram  Coal  Co.  v.  Southern   [1903]  A.  C. 

(Eng.)    306.   72  L.   J.  K.  B.  N.   S. 

691,  89  L.  T.  N.  S.  103,  19  Times 

L.  R.  579 — 158. 
Acres    v.    Frederick    &    Nelson    (1914)    79  j 

Wash.  402,  140  Pac.  370,  5  N.  C.  I 

C.  A.  557 — 222,  435. 
Adams  v.  Acme  White  Lead  &  Color  Works, 

(1914)    182  Mich.  157,  148  N.  W. 

485    (reported    in    full    herein,    p. 

283) — 229,  278,  290,  412. 
v.  Shaddock  [1905]  2  K.  B.  (Eng.)  859, 

54  Week.  Rep.  97,  22  Times  L.  R. 

15,  75  L.  J.  K.  B.  N.  S.  7,  93  L.  T. 

N.  S.  725 — 208,  368. 
v.  Thompson    (1911)    5    B.    W.    C.    C. 

(Eng.)   19 — 37,  326. 
Adams  Exp.  Co.  v.  Croninger,  226  U.  S.  491, 

57  L.  ed.  314,  44  L.R.A.(N.S-)  257, 

33  Sup.  Ct.  Rep.  148 453. 


Allen  v.  Boston,  159  Mass.  324,  38  Am.  St. 

Rep.  423,  34  N.  E.  519 — 280. 
v.  Francis  [1914]  3  K.  B.  (Eng.)  1065, 

30  Times  L.  R.  695,  83  L.  J.  K.  B. 

X.  S.  1814,  58  Sol..  Jo.  753,  7  B.  W. 

C.  C.  779 — 188. 
v.  Great  Eastern  R.  Co.  [1914]  2  K.  B. 

(Eng.)  243,  110  L.  T.  N.  S.  498, 

[1914]  W.  N.  33,  83  L.  J.  K.  B.  N. 

S.  898,  [1914]  W.  C.  &  Ins.  Rep. 

388 — 94. 
v.  Hoey  (1914)  49  Ir.  Law  Times,  39, 

8  B.  W.  C.  C.  424 — 85. 
v..Millville    (1915)   --  N.  J.  L.  — ,  95 

Atl.  130 245,  412. 

v.  Spowart  (1906)  8  Sc.  Sess.  5th  series 

(Scot.)   811 — 177. 
v.  Thomas   Spowart   &   Co.    (1906)    43 

Scot.  L.  R.  599 — 145. 
Alloa  Coal  Co.  v.  Drylie  (1913)  W.  C.  &  Ins. 

Rep.  213,  S.  C.  549,  50  Scot.  L.  R. 

350,  1  Scot.  L.  T.  167,  6  B.  W.  C.  C. 

398,  4  N.  C.  C.  A.  899 — 31,  36,  229, 

276,   280,  290,  291,  338. 
Ambridge  v.   Good    (1912)    5   B.  W.  C.  C. 

(Eng.)   691 — 170. 
American  Radiator  Co.  v.  Rogge   (1914)  86 

N.  J.  L.  436,  92  Atl.   85,  affirmed 

in  —  N.  J.  — ,  93  Atl.  1083 443. 


Addie  v.  Coakley  [1909]  S.  C.  545,  46  Scot.  ;  Amys  v.  Barton  [1912]  1  K.  B.  40,  81  L.  J. 


L.  R.  408 — 180. 
Addie  &  Sons'  Collieries  v.  Trainer  (1904) 

7  Sc.  Sess.  Cas.  5th  series   (Scot.) 

115— -125. 
Admiral  Fishing  Co.  v.  Robinson   [1910]    1 

K.  B.  (Eng.)  540,  79  L.  J.  K.  B.  N. 

S.   551,   102   L.    T.   N.    S.   203,   26 

Times  L.  R.  299,  54  Sol.  Jo.  305,  3  j 

B.  W.  C.  C.  247 — 105. 

Agler  v.  Michigan  Agri.  College  (1914)  181  j 
Mich.    559,    148   N.   W.   341,   5   N.  j 

C.  C.  A.  897 — 245. 

Aitken  v.  Finlayson,  B.  &  Co.  [1914]  S.  C. 

760  [1914]  2  Scot.  L.  T.  27,  51 

Scot.  L.  R.  653,  7  B.  W.  C.  C. 

918 34,  46,  57,  294. 

Alabama  G.  S.  R.  Co.  v.  Carroll,  97  Ala.  126, 

18    L.R.A.    433,    38    Am.    St.    Rep. 

163,  11  So.  803 430. 

Albanese  v.  Stewart   (1912)    78  Misc.  581, 

138  N.  Y.  Supp.  942 415,  431. 

Alderidge    v.    Merry    [1913]    2   I.    R.    308, 

[1913]   W.  C.  &  Ins.  Rep.  97,  47 

Ir.  Law  Times,   5,   6   B.  W.  C.  C. 

450 — 58. 
Allan    v.    Glenborg    Union    Fire    Clay    Co. 

[1906-07]  S.  C.  (Scot.)  967 — 79, 

357. 
v.  Oroya  Brownhill  Co.  (1910)  12  West. 

Australian  L.  R.  1 — 127. 


489 


K.  B.  N.  S.  65,  105  L.  T.  N.  S.  619, 

28  Times  L.  R.  29,  5  B.  W.  C.  C. 

117 41,  240,  293,  308. 

Anderson  v.  Adams  [1913]  W.  C.  &  Ins.  Rep. 

506,  50  Scot.  L.  R.  855,  6  B.  W.  C. 

C.  874 — 43. 
v.  Baird    (1903)    5   Sc.    Sess.   Cas.   5th 

series,   373,  40   Scot.   L.  R.   263 

140,  386,   388. 
v.  Balfour    [1910]    2  I.  R.  497,  44  Ir. 

Law  Times,  168,  3  B.  W.  C.  C.  588 

— 38,  306,  309. 
v.  Darngavil  Coal  Co.  [1910]  S.  C.  456, 

47  Scot.  L.  R.  342 — 171. 
v.  Fife  Coal  Co.   (1910)   47  Scot.  L.  R. 

3    [1910]    S.  C.   8,  3   B.  W.  C.  C. 

539 60,  331. 

v.  Lochgelly  Iron  &  Coal  Co.  (1904)   7 

Sc.    Sess.    Cas.    5th    series    (Scot.) 

187 — 195. 
Andrejwski   v.   Wolverine  Coal  Co.    (1914) 

182   Mich.   298,  148   N.  W.   684,   6 

N.   C.   C.   A.   807 — 216,   260,   261, 

373. 
Andrew  v.  Failsworth  Industrial  Soc.  90  L. 

T.  N.  S.  611  [1904]  2  K.  B.  32,  90 

L.  T.  N.  S.  611,  73  L.  J.  K.  B.  N. 

S.  511,  68  J.  P.  409,  52  Week.  Rep. 

451,  20  Times  L.  R.  429 43,  239, 

307,  341,  346,  347. 


490 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Andrews  v.  Andrews  [1908]  2  K.  B.  (Eng.) 
567,  77  L.  J.  K.  B.  N.  S.  974,  99 
L.  T.  N.  S.  214,  24  Times  L.  R. 
709,  1  B.  W.  C.  C.  264 — 97,  196. 

Anglo-Australian  Steam  Nav.  Co.  v.  Rich- 
ards (1911)  4  B.  W.  C.  C.  (Eng.) 
247 — 145. 

Anslow  v.  Cannock  Chase  Colliery  Co. 
[1909]  1  K.  B.  (Eng.)  352,  78  L. 
J.  K.  B.  N.  S.  154,  99  L.  T.  N.  S. 
901,  25  Times  L.  R.  167,  53  So'. 
Jo.  132,  2  B.  W.  C.  C.  361,  aff'd 
in  [1909]  A.  C.  435,  78  L.  J.  K.  B. 
N.  S.  679,  100  L.  T.  N.  S.  786,  25 
Times  L.  R.  570,  53  Sol.  Jo.  519,  2 

B.  W.  C.  C.  365 153,  373. 

Appleby   v.    Horseley   Co.    [1899]    2   Q.   B. 

(Eng.)    521,   68  L.  J.  Q.  B.  N.  S. 
892,  80  L.  T.  N.  S.  853,  47  Week. 

Rep.   614,   15   Times   L.   R.   410 

103,  157,  158,  362. 
Arizona  &  N.  M.  R.  Co.  v.  Clark  (1913)  125 

C.  C.  A,  305,  207  Fed.  817,  affirmed 
on   appeal   from   decision  on  other 
points  in  235  U.  S.  669,  59  L.  ed. 
415,     L.R.A.1915C,     834,     35     Sup. 
Ct.   Rep.   210 — 216. 

Armitage  v.  Lancashire  &  Y.  R.  Co.  [1902] 

2  K.  B.  (Eng.)   178,  71  L.  J.  K.  B. 

N.  S.  778,  66  J.  P.  613,  86  L.  T. 

N.  S.  883,  18  Times  L.  R.  648 

65,  240,  307,  310. 
Armstrong  v.  Industrial  Commission  (1915) 

—  Wis.  — ,  154  N.  W.  845 — 251. 
v.  St.  Eugene  Min.  Co.  (1908)  13  B.  C. 

385,  1  B.  W.  C.  C.  427 — 180. 
Arniston   Coal   Co.   v.   King    [1913]    S.   C. 

892,  50  Scot.  L.  R.  685,  [1913]  W. 

C.  &  Ins.  Rep.  388,  6  B.  W.  C.  C. 

826 — 186. 
Arnott  v.  Fife  Coal  Co.  [1911]  S.  C.  1029, 

48  Scot.  L.  R.  828,  4  B.  W.  C.  C. 

361 — 162. 
v.  Fife  Coal  Co.  [1912]   S.  C.  1262,  49 

Scot.  L.  R.  902,  6  B.  W.  C.  C.  281 

— 141,  162. 
Arrol  v.  Kelly  (1906)   8  Sc.  Sess.  Gas.  5th 

series    (Scot.)    906 — 126. 
Ashley  v.  Lilleshall  Co.   (1911)  5  B.  W.  C. 

C.   (Eng.)   85 39. 

Ashmore  v.  Lillie  [1915]  W.  C.  &  Ins.  Rep. 

(Eng.)   7,  8  B.  W.  C.  C.  89 — 148. 
Ashton  v.  Boston  &  M.  R.  Co.    (1915)   — 

Mass.  — ,  109  N.  E.  820 — 220. 
Assaria  State  Bank  v.  Dolley   (1911)   219 

U.  S.   121,  55  L.  ed.  123,  31   Sup. 

Ct.   Rep.    189 416. 

Astley   v.    Evans    [1911]    1    K.   B.    (Eng.) 

1036,  80  L.  J.  K.  B.  N.  S.  731,  104 

L.  T.  N.  S.  373,  4  B.  W.  C.  C.  209,  3 

N.  C.  C.  A.  239 67. 

Atkinson  v.  Lumb   [1903]   1  K.  B.    (Eng.) 

861,  72  L.  J.  K.  B.  N.  S.  460,  88 

L.   T.   N.   S.   789,   19   Times  L.  R. 

412,  5  W.  C.  C.  106,  67  J.  P.  414, 

51  Week.  Rep.  516 — 193,  196,  208. 
Atlantic  Coast  Line  R.  Co.  v.  Georgia,  234 

U.  S.  280,  58  L.  ed.  1312,  34  Sup. 

Ct.  Rep.   829 454,  460. 

Aylesworth  v.   Phoenix  Cheese   Co.    (1915) 

—  App.  Div.  — ,  155  N.  Y.  Supp. 
916 — 217. 


Aylward    v.    Matthews     [1905]     1    K.    B. 

(Eng.)    343,  74  L.  J.  K.  B.  N.   S. 

336,  53  Week.  Rep.  518,  88  L.  T. 

N.  S.  671,   19  Times  L.  R.  196 

196. 
Ayres  v.  Buckeridge  [1902]  1  K.  B.  (Eng.) 

57,  71  L.  J.  K.  B.  N.  S.  28,  65  J. 

P.    804,    50    Week.    Rep.    115,    85 

L.  T.  N.  S.  472,  18  Times  L.  R.  20 

— 156. 


B 

Babcock  v.  Pearson   [1913]    S.  C.  959,  50 

Scot.  L.  R.  790,    [1913]   W.  C.  & 

Ins.  Rep.  430,  6  B.  W.  C.  C.  841 

185. 
v.  Young  [1911]  S.  C.  406,  48  Scot.  L. 

R.  298,  4  B.  W.  C.  C.  367 151. 

Back  v.  Dick  [1906]  A.  C.   (Eng.)   325,  75 

L.  J.  K.  B.  N.  S.  569,  94  L.  T.  N. 

S.  802,  8  W.  C.  C.  40,  22  Times  L.  R. 

548 — 193,  196. 
Bacon  v.  United  States  Mut.  Acci.  Asso.  123 

N.  Y.  304,  9  L.R.A.  617,  20  Am.  St. 

Rep.  748,  25  N.  E.  399 — 278. 
Bagley  v.  Furness    [1914]   3  K.  B.    (Eng.) 

974,    83    L.   J.   K.   B.   N.    S.   1546, 

[1914]  W.  N.  300,  7  B.  W.  C.  C.  560 

166. 

Bagnall  v.  Levinstein  [1907]  1  K.  B.  (Eng.) 

531,  76  L.  J.  K.  B.  N.  S.  234,  96 

L.  T.  N.  S.  184,  23  Times  L.  R.  165 

— 115. 
Bailey  v.  Kenworthy  [1908]  1  K.  B.  (Eng.) 

441 — 153. 
v.  Plant  [1901]  1  K.  B.  (Eng.)  31,  70 

L.  J.  Q.  B.  N.  S.  63,  65  J.  P.  49, 

49  Week.  Rep.  103,  83  L.  T.  N.  S. 

459,  17  Times  L.  R.  48 — 188. 
Baird  v.  Ancient  Order  of  Foresters  [1914] 

S.  C.  965,  51  Scot.  L.  R.  819,  7  B. 

W.  C.  C.  943 — 187. 
v.  Birsztan     (1906)     8    Sc.    Sess.    Gas. 

(Scot.)  5th  series,  438 126,  371. 

v.  Burley  [1908]  S.  C.  545,  45  Scot.  L. 

R.  415,  1  B.  W.  C.  C.  7 48. 

v.  Kane  (1905)  7  Sc.  Sess.  Cas.  5th  se- 
ries   (Scot.)    461 — 161. 
v.  M'Whinnie  [1908]  S.  C.  440,  45  Scot. 

L.  R.  338,  1  B.  W.  C.  C.  109 — 144. 
v.  Robson  (1914)  51  Scot.  L.  R.  747,  2 

Scot.  L.  T.  92,  7  B.  W.  C.  C.  925 — 

45. 
v.  Stevenson    [1906-07]    S.   C.    (Scot.) 

1259 — 166,  188. 
Baker  v.  Jewell  [1910]  2  K.  B.  (Eng.)  673, 

79  L.  J.  K.  B.  N.  S.  1092,  103  L.  T. 

N.  S.  173,  3  B.  W.  C.  C.  503 — 145. 
Ball  v.  Hunt  [1912]  A.  C.  (Eng.)  496,  81  L. 

J.  K.  B.  N.  S.  782,  106  L.  T.  N.  S. 

911,  28  Times  L.  R.  428,  56  Sol.  Jo. 

550,  5  B.  W.  C.  C.  459 — 136,  147, 

255,  379,  381. 
v.  Hunt  [1911]  1.  K.  B.  1048,  80  L.  J. 

K.  B.  N.  S.  '655,  104  L.  T.  N.  S.  327, 

27  Times  L.  R.  323,  55  Sol.  Jo.  383, 

4  B.  W.  C.  C.  225 — 136,  255,  379. 
Baltimore  &  0.  S.  W.  R.  Co.  v.  Reed,  158 

Ind.  25,  56  L.R.A.  468,  92  Am.  St. 

Rep.  293,  62  N.  E.  488 430. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


491 


Banknock  Coal  Co.  v.  Lawrie  [1912]  A.  C. 
(Eng.)  105,  81  L.  J.  P.  C.  N.  S.  89, 
106  L.  T.  N.  S.  283,  [1912]  W.  C. 

Rep.  1,  5  B.  W.  C.  C.  209,  28  Times 

L.  R.  136,  [1912]  S.  C.  20,  49  Scot. 

L.  R.  98 128. 

Barbeary  v.  Chugg  (1915)  84  L.  J.  K.  B.  N. 

S.  (Eng.)  504,  112  L.  T.  N.  S.  797, 

31  Times  L.  R.  153,  [1904]  W.  C.  & 

Ins.  Rep.  174,  8  B.  W.  C.  C.  37 — 

37,  291. 

Barbour  Flax  Spinning  Co.  v.  Hagerty 
(1913)  85  N.  J.  L.  407,  89  Atl.  919, 

4  N.  C.  C.  A.  586 264. 

Barclay  v.  M'Kinnon  (1901)  3  Sc.  Sess.  Cas. 

5th  series,  436,  38  Scot.  L.  R.  321, 

8  Scot.  L.  T.  404,  appeal  dismissed 

'in   [1901]  A.  C.   (Eng.)   269,  85  L. 

T.  N.  S.  286,  4  W.  C.  C.  149 — 195. 
Bargewell  v.  Daniel,  98  L.  T.  N.  S.  257 — 364. 
Bargey  v.  Massaro  Macaroni  Co.  (1915)  — 

App.  Div.  — ,  155  N.  Y.  Supp.  1076 

218. 

Barker  v.  Holmes  (1904;  C.  C.)  117  L.  T.  Jo. 

(Eng.)  158,  6  W.  C.  C.  52 88. 

Barnabas  v.  Bershan  Colliery  Co.  103  L.  T. 

N.  S.  513,  55  Sol.  Jo.  63,  4  B.  W.  C. 

C.  119,  48  Scot.  L.  R.  727 — 32,  295, 

301,  335. 
Barnes  v.  Evans  (1914)  W.  C.  &  Ins.  Rep. 

(Eng.)  113,  7  B.  W.  C.  C.  24 — 119. 
v.  Nunnery  Colliery  Co.   [1910]  W.  N. 

(Eng.)  248,  45  L.  J.  N.  C.  757,  aff'd 

in  [1912]  A.  C.  (Eng.)  44,  81  L.  J. 

K.  B.  N.  S.  213,   105  L.  T.  N.   S. 

961,  28  Times  L.  R.  135,  56  Sol.  Jo. 

159,   [1912]  W.  C.  Rep.  90,  [1911] 

W.  N.  251,  5  B.  W.  C.  C.  195 54, 

55,  239. 

Barnes  Case.     See  Barnes  v.  Nunnery  Col- 
liery Co. 
Barnett  v.  Port  of  London  Authority  (1913) 

108  L.  T.  N.  S.  (Eng.)  944,  82  L.  J. 

K.  B.  N.  S.  918,  57  Sol.  Jo.  577, 

[1913]   W.  C.   &  Ins.   Rep.  414,  6 

B.  W.  C.  C.  4G6 — 182. 
v.  Port  of  London  Authority  [1913]  2 

K.  B.  (Eng.)  115,  82  L.  J.  K.  B. 

N.  S.  353,  108  L.  T.  N.  S.  277,  29 

Times  L.  R.  252,  [1913]  W.  C.  & 

Ins.  Rep.  250,  [1913]  W.  N.  35,  57 

Sol.  Jo.  282,  6  B.  W.  C.  C.  105 

150,  151,  156. 
Barrett  v.   Grays   Harbor   Commercial   Co. 

(1913)   209  Fed.  95,  4  N.  C.  C.  A. 

756 222. 

v.  Kemp  Bros.   [1904]   1  K.  B.   (Eng.) 

517,  73  L.  J.  K.  B.  N.  S.  138,  68  J. 

P.  196,  52  Week.  Rep.  257,  90  L.  T. 

N.  S.  305,  20  Times  L.  R.  162,  7 

W.  C.  C.  78 — 203. 
v.  North   British   R.  Co.    (1899)    1   Sc. 

Sess.  Cas.  5th  series,  1139,  36  Scot. 

L.  R.  874,  7  Scot.  L.  T.  88 — 125. 
Barrie  v.  Diamond  Coal  Co.  (1914;  Alberta) 

7  B.  W.  C.  C.  1061 — 87. 
Barren  v.  Blair  &  Co.  (1915)  8  B.  W.  C.  C. 

(Eng.)  501 — 141. 
v.  Carmichael    (1912)    5  B.  W.   C.  C. 

(Eng.)  436 — 80. 


Barron  v.  Seaton  Burn  Coal  Co.  [1915]  1  K. 

B.  (Eng.)  756,  112  L.  T.  N.  S.  897, 
31  Times  L.  R.  199,  84  L.  J.  K.  B. 
N.  S.  682,  [1915]  W.  C.  &  Ins.  Rep. 

I        132,  [1915]  W.  N.  70,  59  Sol.  Jo. 

315,  8  B.  W.  C.  C.  218 110. 

Bartell  v.  Gray  [1902]  1  K.  B.  (Eng.)  225, 
71  L.  J.  K.  B.  N.  S.  115,  66  J.  P. 
308,  50  Week.  Rep.  310,  85  L.  T.  N. 
S.  658,  18  Times  L.  R.  70,  4  W.  C. 

C.  95 — 205,  211. 

Bartlett  v.  Tutton   [1902]    1  K.  B.   (Eng.) 

72,  71  L.  J.  K.  B.  N.  S.  52,  66  J.  P. 

196,  50  Week.  Rep.  149,  85  L.  T. 

N.  S.  531,  18  Times  L.  R.  35 — 150, 

373. 
Barton  v.  Pepin  County  Agri.  Soc.  83  Wis. 

19,  52  N.  W.  1129 [17]  481. 

v.  Scott  (1910)  4  B.  W.  C.  C.  (Eng.)  15 

— 180. 
Basanta  v.  Canadian  P.  R.  Co.  (1911)  16  B. 

C.  304 178,  208. 

Bate  v.  Worsey   [1912]  W.  C.  Rep.   (Eng.) 

194,  5  B.  W.  C.  C.  276 102,  362. 

Bateman  v.  Albion  Combing  Co.  [1914]  W. 

C.  &  Ins.  Rep.  (Eng.)  18,  7  B.  W. 

C.  C.  47 — 43. 
Bateman  Mfg.  Co.  v.  Smith  (1913)  85  N.  J 

L.  409,  89  Atl.  979,  4  N.  C.  C.  A. 

588 — 263. 
Bates  v.  Davies  (1909;  C.  C.)  126  L.  T.  Jo. 

(Eng.)  454,  2  B.  W.  C.  C.  459 46. 

v.  Holding    [1914]    W.   C.   &   Ins.  Rep. 

(Eng.)   6,  7  B.  W.  C.  C.  80 190. 

v.  Mirfield  Coal  Co.  [1913]  W.  C.  &  Ins. 

Rep.  (Eng.)   180,  6  B.  W.  C.  C.  165 

— 55. 
Bates-Smith    v.    General    Motor    Cab    Co. 

[1911]   A.  C.   (Eng.)   188,  80  L.  J. 

K.  B.  N.   S.   839,  27   Times  L.  R. 

370,  4  B.  W.  C.  C.  249 114. 

Bathgate  v.  Caledonian  R.  Co.  (1901)  4  Sc. 

Sess.  Cas.  5th  series,  313,  39  Scot. 

L.  R.  246,  9  Scot.  L.  T.  334 194. 

Batista  v.  West  Jersey  &  S.  R.  Co.  (1913) 

—    N.  J.  L.  — ,  88  Atl.  954 — 251, 

370. 

Battis  v.  Hamlin,  22  Wis.  669 — 377. 
Baur  v.  Court  of  Common  Pleas  (1915)  — 

N.  J.  L.  — ,  95  Atl.  627 — 216,  245, 

261,  263. 
Baxter  v.  Chicago  &  N.  W.  R.  Co.  104  Wis. 

307,  80  N.  W.  644,  6  Am.  Neg.  Rep. 

746 — [6]  470. 
Bayne  v.  Riverside  Storage  &  Cartage  Co. 

(1914)    181   Mich.   378,  148   N.  W. 

412,  5  N.  C.  C.  A.  837 — 230,  292. 
Bayon  v.  Beckley   (1915)   89  Conn.  154,  93 

Atl.  139,  8  N.  C.  C.  A.  588 — 217, 

220,  271. 
Beadle   v.    Nicholas    [1909]    W.   N.    (Eng.) 

227,  101  L.  T.  N.  S.  586 — 183. 
Beale  v.  Fox   (1909;   C.  C.)    126  L.  T.  Jo. 

(Eng.)   257,  2  B.  W.  C.  C.  467 — 

77,  357. 
Beare  v.  Garrod  (1915)  8  B.  W.  C.  C.  (Eng.) 

474 — 181. 
Beath  v.  Ness   (1903)   6  Sc.  Sess.  Cas.  5th 

series,  168,  41  Scot.  L.  R.  113,  11 

Scot.  L.  T.  455 — 144. 


492 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Beaumont  v.  Underground  Electric  R.  Co. 

[1912]    W.  C.   Rep.    (Eng.)    123,  5 

B.  W.  C.  C.  247 — 33,  295. 
Beck  v.  Hill  &  Sons  (1915)   8  B.  W.  C.  C. 

(Eng.)   592 — 115. 
Beckley  v.  Scott  [1902]  2  L.  R.  (Ir.)  504 — 

72,  73. 
Beddard  v.  Stanton  Ironworks  Co.   [1913] 

W.  C.   &  Ins.   Rep.    (Eng.)    535,  6 

B.  W.  C.  C.  627 138. 

Bedwell  v.  London  Electric  R.  Co.  (1914)  7 

B.  W.  C.  C.  (Eng.)-  685 — 80. 

Bee  v.  Ovens    (1900)    2   Sc.  Sess.  Cas.  5th 

series,  439,  37   Scot.   L.  R.  328,  7 

Scot.  L.  T.  362 — 98. 
Beech  v.  Bradford  Corp.  (1911)  4  B.  W.  C.  C. 

(Eng.)  236 — 189. 
Behringer  v.  Inspiration  Consol.  Copper  Co. 

(1915)  —  Ariz.  — ,  149  Pac.  1065 — 

223 
Belfast,  The,  7  Wall.  624,  19  L.  ed.  266 — 

440. 
Bell  v.  Whitton  (1899)  1  Sc.  Sess.  Cas.  5th 

series,   942,  36  Scot.  L.  R.   754,  7 

Scot.  L.  T.  59 — 194. 
Bellamy  v.  Humphries  [1913]  W.  C.  &  Ins. 

Rep.   (Eng.)   169,  6  B.  W.  C.  C.  53 

— 37,  42,  326. 
Belsey  v.  Sadler  (1899;   C.  C.)   1  W.  C.  C. 

(Eng.)  141 — 208. 
Bender  v.  The  Zent  [1909]  2  K.  B.  (Eng.) 

41,  78  J.  K.  B.  N.  S.  533,  100  L. 

T.  N.  S.  639,  2  B.  W.  C.  C.  22 — 69. 
Bennett  v.  Aird  (1899;  C.  C.)  107  L.  T.  Jo. 

(Eng.)   550,  1  W.  C.  C.  138 — 201, 

208. 
v.  Wordie  (1899)  1  F.  855,  36  Scot.  L. 

R.  643,  7  Scot.  L.  T.  10 — 85. 
Benson  v.  Lancashire  &  Y.  R.  Co.  [1904]  1 

K.  B.  (Eng.)  242,  73  L.  J.  K.  B.  N. 

S.  122,  68  J.  P.  149,  52  Week.  Rep. 

243,  89  L.  T.  N.  S.  715,  20  Times 

L.  R.  139 46. 

v.  Metropolitan  Asylums  Board  (1908) 

124  L.  T.  Jo.  403 — 202. 
Bentley's  Case  (1914)  217  Mass.  79,  104  N. 

E.  432,  4  N.  C.  C.  A.  559 — 251,  266, 

268,  370. 
Berger  v.  Berger,  104  Wis.  282,  76  Am.  St. 

Rep.  877,  80  N.  W.  585 377. 

Bernard  v.   Michigan  United  Traction  Co. 

(1915)    —    Mich.    — ,    154    N.    W. 

565 — 222. 
Berry  v.  Canteen  &  Mess.  Co-op.  Soc.  (1910) 

3  B.  W.  C.  C.   (Eng.)   449 — 94. 
Berton  v.  Tietjen  &  L.  Dry  Dock  Co.  219 

Fed.  763 462. 

Besnys    v.    Herman    Zohrlaut    Leather    Co. 

(1914)  157  Wis.  203,  147  N.  W.  37, 

5    N.    C.   C.    A.   282 244. 

Bett  v.  Hughes    (1914)    52  Scot.  L.  R.  93, 

[1915]  S.  C.  150,  8  B.  W.  C.  C.  362 

43,  315. 

Bevan  v.  Crawshay  Bros.    [1902]    1  K.  B. 

(Eng.)  25,  71  L.  J.  K.  B.  N.  S.  49, 

85  L.  T.  N.  S.  496,  50  Week.  Rep. 

98 — 134. 
v.  Energlyn  Colliery  Co.  [1912]  1  K.  B. 

(Eng.)   63,   [1911]  W.  N.  206,  105 

L.  T.  N.  S.  654,  28  Times  L.  R.  27, 

81  L.  J.  K.  B.  N.  S.  172,  5  B.  W.  C. 

C.  169 144. 


Biggart  v.  The  Minnesota  (1911)  5  B.  W.  C. 

C.  (Eng.)  68 — 66. 
Bigwood  v.  Boston  &  N.  Street  R.  Co.  20& 

Mass.  345,  35  L.R.A.(N.S.)  113,  9& 

N.  E.  751 — 335. 
Billings  v.  Halloway  [1899]  1  Q.  B.  (Eng.) 

70,  168  L.  J.  Q.  B.  N.  S.  16,  79  L. 

T.  N.  S.  396,  47  Week.  Rep.  105,  15 

Times  L.  R.  53 — 197. 
Bines  v.  Gueret   [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)  158,  6  B.  W.  C.  C.  120 — 69. 
Binning  v.  Easton   (1906)    8  Sc.  Sess.  Cas. 

5th  series  (Scot.)  407 — 180. 
Binns   v.    Kearley    (1913)    6   B.   W.    C.   C. 

(Eng.)    608 — 141. 
Birks  v.  Stafford  Coal  &  I.  Co.  [1913]  3  K.  B. 

(Eng.)  686,  109  L.  T.  N.  S.  290.  82 

L.  J.  K.  B.  N.  S.  1334,  [1913]  W.  N. 

238,  57  Sol.  Jo.  729,  6  B.  W.  C.  C. 

617 — 110. 

Birmingham  v.  Lehigh  &  W.  Coal  Co.  (1915) 
-  N.  J.  L.  — ,  95  Atl.  242 — 216, 

257,  263,  272. 
Birmingham    Cabinet    Mfg.    Co.    v.    Dudley 

(1910)   102  L.  T.  N.  S.  (Eng.)  619, 

3  B.  W.  C.  C.  169 — 170. 
Bist  v.  London  &  S.  W.  R.  Co.  [1907]  A.  C. 

(Eng.)  209,  76  L.  J.  K.  B.  N.  S.  703, 

96  L.  T.  N.  S.  750,  23  Times  L.  R. 

471,  8  Ann.  Cas.  1 77,  357. 

Black  v.  Fife  Coal  Co.  (1909)  S.  C    152,  46 

Scot.   L.   R.   191,   reversed   by   the 

House  of  Lords  in  5  B.  W.  C.  C. 

(Eng.)  217 — 82. 
v.  Merry  [1909]  S.  C.  1150,  46  Scot.  L. 

R.  812 — 144. 
v.  New  Zealand  Shipping  Co.  [1913]  W. 

C.  &  Ins.  Rep.  (Eng.)  480,  6  B.  W. 

C.  C.  720 — 36,  290. 
Blackford  v.  Green   (1915)  —  N.  J.  L.  — , 

94  Atl.  401 — 264,  265. 
Blain  v.  Greenock  Foundry  Co.  (1903)  5  Sc. 

Sess.  Cas.  5th  series,  893,  40  Scot. 

L.  R.  639,  11  Scot.  L.  T.  92 72. 

Blake  v.  Head  [1912]  W.  C.  Rep.  (Eng.)  198, 

106  L.  T.  N.  S.  822,  28  Times  L.  R. 

321,  5  B.  W.  C.  C.  303 — 65,  240, 

307,  310. 
v.  Midland  R.  Co.  [1904]  1  K.  B.  (Eng.) 

503,  73  L.  J.  K.  B.  N.  S.  179,  68  J. 

P.  215,  90  L.  T.  N.  S.  433,  20  Times 

L.  R.  191 — 186. 
Blanz  v.  Erie  R.  Co.  (1913)  84  N.  J.  L.  35, 

85  Atl.  1030 253. 

Blovelt  v.  Sawyer    [1904]    1  K.  B.    (Eng.) 

271,  73  L.  J.  K.  B.  N.  S.  155,  68  J. 

P.  110,  52  Week.  Rep.  503,  89  L. 

T.  N.  S.  658,  20  Times  L.  R.  105 

— 59,  60,  237,  319,  320,  329. 
Blynn  v.  Pontiac    (1915)   —  Mich.  — ,  151 

N.  W.  681,  8  N.  C.  C.  A.  793 — 247. 
Blyth  v.  Sewell  (1909;  C.  C.)  126  L.  T.  Jo. 

(Eng.)  552,  2  B.  W.  C.  C.  476 — 97. 
Boag  v.  Lochwood  Collieries  [1910]  S.  C.  51, 

47  Scot.  L.  R.  47,  3  B.  W.  C.  C. 

549 — 147,  164,  381. 

Boardman  v.  Scott,  85  L.  T.  N.  S.  502 — 297. 
v.  Scott,  3  W    C.  C.  33 — 297. 
v.  Scott  [1902]  1  K.  B.  (Eng.)  43,  71  L. 

J.  K.  B.  N.  S.  3,  66  J.  P.  260,  50 

Week.  Rep.  184 — 32. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


493 


Bobby  v.  Crosbie  (1915)  84  L.  J.  K.  B.  N.  S. 

(Eng.)    856,   112   L.   T.  N.   S.  900, 

8  B.  W.  C.  C.  236 — 97,  114,  188. 
Bodner  v.  West  Canadian  Collieries   (1912) 

8  D.  L.  R.  (Alberta)  462,  22  West. 

L.  Rep.   (Can.)   765 — 178. 
Bolt  v.  Heywood  (1903;  C.  C.)  114  L.  T.  Jo. 

(Eng.)   294,  5  W.  C.  C.  151 — 192. 

201,  202. 
Bonney  v.  Hoyle  [1914]  2  K.  B.  (Eng.)  257, 

83  L.  J.  K.  B.  N.  S.  541,  136  L.  T. 

Jo.  376,  30  Times  L.  R,  280,  58  Sol. 

Jo.  268,  [1914]  W.  N.  43,  12  L.  G. 

R.  358,  110  L.  T.  N.  S.  729,  7  B.  W. 

C.  C.  168 — 178,  187. 
Bonsall   v.   Midland   Colliery   Owners   Mut. 

Indemnity  Co.  [1914]  W.  C.  &  Ins. 

Rep.  (Eng.)  331,  7  B.  W.  C.  C.  613 

147. 

Boody  v.  K.  &  C.  Mfg.  Co.  (1914)  77  N.  H. 

208,  90  Atl.  860,  Ann.  Cas.  1914D, 

1280    (reported    in    full    herein,   p. 

[10]  474) 217,  219,  227,  231,  233, 

242,  244,  356. 
Boon   v.   Quance    (1910)    102   L.    T.   N.    S. 

(Eng.)  443,  3  B.  W.  C.  C.  106 118. 

Booth  v.  Carter   [1915]  W.  C.  &  Ins.  Rep. 

(Eng.)  59,  8  B.  W.  C.  C.  106 138. 

v.  Leeds  &  L.  Canal  Co.  [1914]  W.  C.  & 

Ins.  Rep.  (Eng.)  310,  7  B.  W.  C.  C. 

434 — 68. 
Borgnis  v.  Falk  Co.  147  Wis.  327,  37  L.R.A. 

(N.S.)  489,  133  N.  W.  209,  3  N.  C. 

C.  A.  649 395,  399,  414,  415,  423- 

428. 
Borland  v.  Watson  [1912]  S.  C.  15,  49  Scot. 

L.  R.  10,  5  B.  W.  C.  C.  514 69. 

Boston  &  M.  R.  Co.  v.  Kurd,  56  L.R.A.  196, 

47  C.  C.  A.  615,  108  Fed.  116 — 430. 
Boswell   v.    Gilbert    (1909)    127    L.   T.   Jo. 

(Eng.)  146,  2  B.  W.  C.  C.  251 114. 

Bottoms  v.  St.  Louis  &  S.  F.  R.  Co.  (C.  C.) 

179  Fed.  318 — 455. 
Bowden  v.  Barrow  Bros.  (1901;  C.  C.)  3  W. 

C.  C.  (Eng.)  215 — 191. 
Bowen  v.  Boston  &  A.  R.  Co.  179  Mass.  524, 

61  N.  E.  141 336. 

Bowhill  Coal  Co.  v.  Malcolm   (1909)   S.  C. 

426,  46  Scot.  L.  R.  354,  2  B.  W.  C. 

C.  131 172. 

v.  Neish  [1909]  S.  C.  252,  46  Scot.  L.  R. 

250 — 124.    ' 
Boyd  v.  Pratt  (1913)  72  Wash.  306,  130  Pac. 

371 — 254,  262. 
Boyle  v.  Columbian  Fire  Proofing  Co.  182 

Mass.   93,   64   N.   E.   726 — 319. 
Bradley  v.  Wallaces  [1913]  3  K.  B.  (Eng.) 

629,  82  L.  J.  K.  B.  N.  S.  1074,  109 

L.  T.  N.  S.  281,  29  Times  L.  R.  705, 

[1913]  W.  N.  239,  [1913]  W.  C.  & 

Ins.  Rep.  620,  6  B.  W.  C.  C.  706 

103,  362. 
Brady  v.  Canadian  P.  R.  Co.  (1913)  6  B.  W. 

C.  C.  (Eng.)  680 — 84. 
Braithwaite  v.  Cox   (1911)    5  B.  W.  C.  C. 

(Eng.)   77 — 140,  170,  388. 
Bramley   v.   Evans    (1909)    3   B.  W.   C.   C. 

(Eng.)  34 — 87. 
Branford  v.  North  Eastern  R.  Co.  (1910)  4 

B.  W.  C.  C.   (Eng.)   84 187. 

Breakwell  v.  Clee  Hill  Granite  Co.  (1911)  5 

B.  W.  C.  C.   (Eng.)   133 90. 


Brennen   v.   Dublin   United   Tramways   Co. 

[1900]  2  I.  R.  (Ir.)  241 — 98. 
Brewer  v.  Smith  (1913)  6  B.  W.  C.  C.  (Eng.) 

651 — 78. 
Brice  v.  Lloyd  [1909]  2  K.  B.  (Eng.)   804, 

101  L.  T.  N.  S.  472,  25  Times  L.  R. 

759,  53  Sol.  Jo.  744 55. 

Briere  v.  Taylor,  126  Wis.  347,  105  N.  W. 

817 — 369. 
Briggs  v.  Mitchell  [1911]  S.  C.  705,  48  Scot. 

L.  R.  606,  4  B.  W.  C.  C.  400 122, 

124. 
Brightman,   Re    (1914)    220   Mass.   17,   107 

N.  E.  527,  8  U.  C.  C.  A.  102   (re- 
ported   in    full    herein,    p.    321)  — 

230,  237,  268,  294,  322,  336. 
Brine   v.   May    [1913]    W.   C.   &  Ins.   Rep. 

(Eng.)  148,  6  B.  W.  C.  C.  134 — 96. 
v.  May  (1912)  6  B.  W.  C.  C.  (Eng.)  460 

— 183. 
Brintons  v.  Turvey  [1905]  A.  C.  230,  74  L. 

J.  K.  B.  N.  S.  474,  53  Week.  Rep. 

641,  92  L.  T.  N.  S.  578,  21  Times 

L.  R.  444,  2  Ann.  Cas.  137 — 27,  29, 

30,  34,  37,  229,  276,  280,  286,  326. 
v.  Turvey   [1904]   1  K.  B.   (Eng.)  328, 

73  L.  J.  K.  B.  N.  S.  158,  68  J.  P. 

193,  52  Week.  Rep.  195,  89  L.  T. 

N.   S.  660,  20  Times  L.  R.  129 

37,  326. 
British   &   S.   A.   Steam   Nav.   Co.  v.   Neil 

(1910)  3  B.  W.  C.  C.  (Eng.)  413 

94,  191. 

British  Columbia  Copper  Co.  v.  McKittrick 

(1913;   B.  C.)   7  B.  W.  C.  C.  1037 

— 178,    188. 
British  Columbia  Sugar  Ref.  Co.  v.  Granick 

(1910)    44  Can.   S.  C.  105,  2  Can. 

C.  C.  A.  852,  aff'g  15  B.  C.  198 — 

79,  357. 
Broderick  v.  London  County  Council  [1908] 

2  K.  B.  (Eng.)  807,  77  L.  J.  K.  B. 

N.  S.  1127,  99  L.  T.  N.  S.  569,  24 

Times  L.  R.  822,  15  Ann.  Cas.  885 

— 35,  277,  290. 
Brodie  v.  North  British  R.  Co.  (1900)  3  Sc. 

Sess.  Cas.  5th  series,  75,  38  Scot. 

L.  R.  38,  8  Scot.  L.  T.  248 194, 

200. 
Broforst  v.  Blomfield  (1913)  6  B.  W.  C.  C. 

(Eng.)  613 — 34,  294, 
Brooker  v.  Warren  (1907)  23  Times  L.  R. 

(Eng.)  201 — 77,  357. 
Brooks  v.  Knowles    (1911)    5  B.  W.  C.  C. 

(Eng.)  15 — 80. 
Brown  v.  British  Columbia  Electric  R.  Co. 

(1910)  15  B.  C.  350 127. 

v.  Chicago,  M.  &  St.  P.  R.  Co.  54  Wis. 

342,  41  Am.  Rep.  41,  11  N.  W.  356, 

7  Am.  Neg.  Cas.  203 — [17]  481. 
v.  Com.  8  Mass.  59 — 364. 
v.  Cunningham  (1904)  6  Sc.  Sess.  Cas, 

5th  series   (Scot.)   997 — 156. 
v.  Decatur  (1914)  188  111.  App.  147 — 

217,  236,  245. 
v.  Hunter  [1912]  S.  C.  996,  49  Scot.  L. 

R.  695,  5  B.  W.  C.  C.  589 80,  177. 

v.  Kemp  [1913]  W.  C.  &  Ins.  Rep.  595, 

6  B.  W.  C.  C.  725 35,  302,  303. 


494 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Brown  v.  Kent  [1913]  3  K.  B.   (Eng.)   624, 

82  L.  J.  K.  B.  N.  S.  1039,  109  L.  T. 

N.    S.    293,    29    Times    L.    R.    702, 

[1913]   W.  N.  258,  6  B.  W.  C.  C. 

745 37,  229,  280,  292. 

v.  Lochgelly  Iron  &  Coal  Co.  [1907]  S. 

C.   (Scot.)    198 — 90. 
v.  London  &  N.  W.  R.  Co.  (1899;  C.  C.) 

1  W.  C.  C.  (Eng.)  147 — 163. 
v.  Orr   [1909-10]   S.  C.    (Scot.)    526 — 

180. 
v.  Scott  (1899)  1  W.  C.  C.  (Eng.)  11 — 

62. 
v.  South  Eastern  &  C.  R.  Co.  (1910)  3 

B.  W.  C.  C.  (Eng.)  428 — 174. 

v.  Thornycroft  &  Co.  (1912)  5  B.  W.  C. 

C.  (Eng.)  386 — 172,  379. 

v.  Watson  [1915]  A.  C.  (Eng.)  1,  111  L. 
T.  N.  S.  347,  30  Times  L.  R.  501, 
58  Sol.  Jo.  533,  [1914]  W.  N.  195, 
7  B.  W.  C.  C.  257,  83  L.  J.  P.  C.  N. 
S.  307,  [1914]  W.  C.  &  Ins.  Rep. 
228,  reversing  [1913]  S.  C.  593,  50 
Scot.  L.  R.  415,  [1913]  W.  C.  &  Ins. 

Rep.  223,  6  B.  W.  C.  C.  416 37. 

Browne  v.  Kidman   (1911)   4  B.  W.  C.  C. 

(Eng.)    199 — 39. 

Bruce  v.  Henry  (1900)  2  Sc.  Sess.  Gas.  5th 
series,  717,  37  Scot.  L.  R.  511,  7 
Scot.  L.  T.  421 — 211. 

Bruno  v.  International  Coal  &  Coke  Co. 
(1913;  Alberta)  7  B.  W.  C.  C.  1033 
— 87,  91,  92,  182. 

Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl.  458, 

3  N.  C.   C    A.  585 — 227,  231-233, 

241,   242,  266,   298,  316,  325,  341, 

[13]  477. 

Bryce  v.  Connor  (1904)  7  Sc.  Sess.  Cas.  5th 

series  (Scot.)  193 — 162. 
Bryson  v.  Dunn  (1905)  8  Sc.  Sess.  Cas.  5th 

series  (Scot.)  226 — 143. 
Bucher  v.  Wisconsin  C.  R.  Co.  139  Wis.  597, 

120  N.  W.  518 [6]  470. 

Buckingham  v.  Fulham  (1905)  69  J.  P. 
(Eng.)  297,  53  Week.  Rep.  628,  21 
Times  L.  R.  511,  3  L.  G.  R.  926,  7 
W.  C.  C.  79 — 207. 

Buckley  v.  London  &  I.  Docks  (1909)  127 
L.  T.  Jo.  (Eng.)  521,  2  B.  W.  C.  C. 
327 — 152,  155,  373. 

Buckley's  Case    (1914)   218  Mass.  354,  105 
N.  E.  979,  5  N.  C.  C.  A.  613 — 252, 
266,  269. 
Bullworthy  v.  Glanfield  (1914)   7  B.  W.  C. 

C.  (Eng.)  191 — 50. 

Buls  v.  The  Teutonic  [1913]  3  K.  B.  (Eng.) 
695,  82  L.  J.  K.  B.  N.  S.  1331,  109 
L.  T.  N.  S.  127,  29  Times  L.  R.  675, 
[1913]  W.  N.  238,  6  B.  W.  C.  C. 
653 — 190. 
Burbage  v.  Lee  (1915)  —  N.  J.  L.  — ,  93  Atl. 

859 — 255. 

Burden  v.  Gregson   [1906]   2  K.  B.   (Eng.) 
283,  75  L.  J.  K.  B.  N.  S.  644,  95  L. 
T.  N.  S.  45,  8  W.  C.  C.  76 — 210. 
Burgess  v.   Jewell    (1911)    4   B.   W.  C.  C. 

(Eng.)  145 138,  141,  170,  389. 

Burley  v.  Baird  [1908]  S.  C.  545,  45  Scot. 
L.  R.  416,  1  B.  W.  C.  C.  7 — 310. 


Burman  v.  Zodiac  Steam  Fishing  Co.  [1914} 

3  K.  B.   (Eng.)   1039,  30  Times  L. 

R.  651,  83  L.  J.  K.  B.  N.  S.  1683, 
[1914]   W.  N.  329,  7  B.  W.  C.  C. 

767 — 105. 
Burnes  v.  Swift  &  Co.  (1914)  186  111.  App. 

460 — 224. 
Burnett  v.  Drury  Lane  Theatre  (1902)  4  W. 

C.  C.   (Eng.)   56 — 201. 
Burnham  v.  Hardy   (1915)    84  L.  J.  K.  B. 

N.  S.   (Eng.)   714,  [1915]   W.  C.  & 

Ins.  Rep.  146,  8  B.  W.  C.  C.  57 

188. 
Burns  v.  Baird  [1913]  S.  C.  358,  50  Scot.  L. 

R.  280,  [1913]  W.  C.  &  Ins.  Rep. 

61,  6  B.  W.  C.  C.  362 — 189. 
v.  Grand  Rapids  &  I.  R.  Co.  113  Ind. 

169,  15  N.  E.  230 430. 

v.  Manchester  &  S.  Wesleyan  Mission 

(1908)   99  L.  T.  N.  S.   (Eng.)   579, 

125  L.  T.  Jo.  336,  1  B.  W.  C.  C. 

305 — 114. 
v.  North   British   R.  Co.    (1900)    2   Sc.. 

Sess.  Cas.  5th  series,  629,  37  Scot. 

L.  R.  448,  7  Scot.  L.  T.  408 98. 

v.  Summerlee  Iron  Co.  [1913]  S.  C.  227, 

50  Scot.  L.  T.  164,    [1913]   W.  C. 

&  Ins.  Rep.  45,  6  B.  W.  C.  C.  320 — 

56. 
Burns's  Case  (1914)  218  Mass.  8,  105  N.  E. 

601,  5  N.  C.  C.  A.  635 230,  243, 

258,  266,  292,  355. 
Burr  v.  William  Whiteley  (1902)  19  Time* 

L.  R.  (Eng.)  117,  5  W.  C.  C.  102 

206. 
Burrell  v.  Avis  (1898;  C.  C.)  106  L.  T.  Jo. 

(Eng.)  61,  1  W.  C.  C.  129 — 78,  351. 

356. 
v.  Holloway  Bros.  (1911)  4  B.  W.  C.  C. 

(Eng.)  239 — 87. 
Burt  v.  Fife  Coal  Co.  (1914)  52  Scot.  L.  R. 

51,  8  B.  W.  C.  C.  350 — 148. 
Burton   v.    Chapel    Coal    Co.    [1909]    S.   C. 

(Scot.)  430 72. 

Burwash  v.  Leyland  (1912)  107  L.  T.  N.  S. 

(Eng.)    735,   28   Times  L.   R.   546, 

54  Sol.  Jo.  703,  [1912]  W.  C.  Rep. 

400,  5  B.  W.  C.  C.  663 68. 

Busby  v.  Richardson  (1901;  C.  C.)  3  W.  C.. 

C.   (Eng.)   54 80. 

Bush  v.  Hawes  [1902]  1  K.  B.  (Eng.)  216r 

71  L.  J.  K.  B.  N.  S.  68,  85  L.  T. 

N.  S.  507,  66  J.  P.  260,  50  Week. 

Rep.  311 — 98. 
Butler  v.  Boston  &  S.  S.  S.  Co.  130  U.  S. 

527,   32    L.   ed.    1017,   9    Sup.    Ct. 

Rep.  612 449. 

v.  Burton-on-Trent  Union  [1912]  W.  C. 

Rep.    (Eng.)    222,  106  L.  T.  N.  S. 

824,  5  B.  W.  C.  C.  355 42. 

Butt  v.  Gellyceridrin  Colliery  Co.  (1909)  S 

B.  W.  C.  C.  (Eng.)  44 85,  88,  133,. 

292. 
v.  Provident    Clothing    &    Supply    Co. 

[1913]   W.  C.  &  Ins.  Rep.   (Eng.) 

119,  6  B.  W.  C.  C.  18 49. 

Byles  v.  Pool   (1908;  C.  C.)   126  L.  T.  Jo. 

(Eng.)    287,  73  J.  P.  104,  53   Sol. 
Jo.  215,  2  B.  W.  C.  C.  484 125, 

136. 

Byrne,  Re  (1910;  Prob.)  44  Ir.  Law  Times, 
98,  3  B.  W.  C.  C.  591 — 113. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


495 


Byrne  v.  Baltinglass  Rural  Dist.  Council 
(1911)  45  Ir.  L.  Times  206,  5  B. 
W.  C.  C.  566 — 119. 


Cadenhead  v.  Ailsa  Shipbuilding  Co.  [1909- 

10]  S.  C.  (Scot.)  1129 — 167. 
Cadzow  Coal  Co.  v.  Gaffney   (1900)   3  Sc. 

Sess.  Gas.  5th  series,  72,  38  Scot. 

L.  R.  40,  8  Scot.  L.  T.  224 — 155. 
Cain  v.  Frederick  Leyland  &  Co.  [1908]  1  K. 

B.  (Eng.)  441,  77  L.  J.  K.  B.  N.  S. 

236,  98  L.  T.  N.  S.  327,  24  Times 

L.  R.  186,  1  B.  W.  C.  C.  368 — 151. 
v.  National   Zinc   Co.    (1915)    94  Kan. 

679,  146  Pac.  1165 262,  265,  271. 

Caledonian  R.  Co.  v.  Breslin   (1900)   2  Sc. 

Sess.  Cas.  5th  series,  1158,  37  Scot. 

L.  R.  873,  8  Scot.  L.  T.  125 194. 

v.  Paterson  (1898)  1  Sc.  Sess.  Cas.  5th 

series,  26,  36  Scot.  L.  R.  60,  6  Scot. 

L.  T.  194,  2  Adam,  620 — 202. 
v.  Warwick  (1897)  25  R.  (H.  L.)  1,  35 

Scot.  L.  R.  54 102. 

Caledon  Shipbuilding  &  Engineering  Co.  v. 

Kennedy    (1906)    8  Sc.   Sess.  Cas. 

5th  series  (Scot.)  960 79. 

Calico  Printers'  Asso.  v.  Booth  [1913]  3  K. 

B.  (Eng.)  652,  82  L.  J.  K.  B.  N.  S. 
985,  [1913]  W.  C.  &  Ins.  Rep.  540, 
109  L.  T.  N.  S.  123,  6  B.  W.  C.  C. 
551 172. 

v.  Booth,  20  Times  L.  R.  664.  57  Sol.  Jo. 
662,  [1913]  3  K.  B.  (Eng.)  652,  82 
L.  J.  K.  B.  N.  S.  985,  6  B.  W.  C. 

C.  556 — 173. 

v.  Hiph*m    F1012]    1   K.  B.    (Eng.)    93, 

[1911]  W.  N.  221,  28  Times'  L.  R. 

53,  56  Sol.  Jo.  89 — 173. 
Caliendo's  Case   (1914)   219  Mass.  498,  107 

N.  E.  370 — 249,  251,  252. 
Callaghan  v.  Maxwell  (1900)  2  Sc.  Sess.  Cas. 

5th  series,  420,  37  Scot.  L.  R.  313, 

7  Scot.  L.  T.  339 — 54,  77,  356. 
Cambrook  v.  George  (1903;  C.  C.)  114  L.  T. 

Jo.  (Eng.)  550,  5  B.  W.  C.  C.  26 

45. 
Cameron    v.    Port    of    London    Authority 

(1912)  5  B.  W.  C.  C.  (Eng.)  416 — 

134. 
Cammell   v.   Platt    (1908)    2   B.   W.   C.   C. 

(Eng.)  368 — 138. 
Cammell  L.  &  Co.  v.  Fladd  (1908)  2  B.  W. 

C.  C.  (Eng.)  368 — 378. 
Cammick  v.  Glasgow  Iron  &  Steel  Co.  (Ct. 

of  Sess.)  4  F.  198,  cited  in  2  Mews. 

Dig.  Supp.  1578 — 186. 
Campbell  v.  Barclay,  Curie  &  Coy   (1904) 

6  Sc.  Sess.  Cas.  5th  series,  371,  41 

Scot.  L.  R.  289,  11  Scot.  L.  T.  082 

— 126,  371. 
v.  Fife  Coal  Co.  (1902)  5  Sc.  Sess.  Cas. 

5th  series,  170,  40  Scot.  L.  R.  143, 

10  Scot.  L.  T.  410 157. 

v.  M'Nee    (1903)    5  Sc.  Sess.  Cas.  5th 

series,  1151,  11  Scot.  L.  T.  277,  40 

Scot.  L.  R.  824 — 202. 
v.  Sellars   (1903)   5  Sc.  Sess.  Cas.  5th 

series,  900,  40  Scot.  L.  R.  643,  11 

Scot.  L.  T.  89 — 199. 


Canadian  P.  R.  Co.  v.  McDonald  (1915)  31 

Times  L.  R.    (Eng.)   600 142. 

Canavan  v.  The  Universal  (1910)  3  B.  W.  C. 

C.  (Eng.)  355 — 67. 
Cappelle  v.  412  Broadway  Co.  (1915)  —  App. 

Div.  — ,  155  N.  Y.  Supp.  858 — 218. 
Cardiff  Corp.  v.  Hall,  4  B.  W.  C.  C.  159, 

[1911]  1  K.  B.  1009,  80  L.  J.  K.  B. 

N.  S.  644,  27  Times  L.  R.  339,  104 

L.  T.  N.  S.  467 — 146,  379,  380. 
Cardoza  v.  Pillsbury  (1915)  —  Cal.  — ,  145 

Pac.  1015 — 269. 
Cargeme  v.  Alberta  Coal  &  Min.  Co.  (1912) 

6  D.  L.  R.  (Alberta)  231,  22  West. 

L.  Rep.   (Can.)   68 — 118,  179. 
Carinduff   v.    Gilmore    (1914)    48   Ir.    Law 

Times,  137,   [1914]    W.   C.  &  Ins. 

Rep.  247,  7  B.  W.  C.  C.  981 — 59, 

320. 
Carlin  v.  Stephen  &  Sons  [1911]  S.  C.  901, 

48  Scot.  L.  R.  862,  5  B.  W.  C.  C. 

486 146,  147,  380. 

Carolan  v.  Harrington  [1911]  2  K.  B.  (Eng.) 

733,  80  L.  J.  K.  B.  N.  S.  1153,  105 

L.  T.  N.  S.  271,  27  Times  L.  R.  486, 

4  B.  W.  C.  C.  253 — 191. 
Carrick   v.   North    British    Locomotive   Co. 

[1909]    S.  C.    (Scot.)    698 67. 

Carrington    v.    Bannister    [1901]    1    K.   B. 

(Eng.)    20,   70   L.   J.   K.   B.   N.   S. 

31,  83  L.  T.  N.  S.  457 — 209. 
Carroll  v.  Knickerbocker  Ice  Co.  (1915)  — 

App.  Div.  — ,  155  N.  Y.  Supp.  1 

268. 
Carter,  Re  (1915)  221  Mass.  105,  108  N.  E. 

911 — 249. 
v.  Lang  [1908]  S.  C.  1198,  45  Scot.  L. 

R.  938,  1  B.  W.  C.  C.  379 154. 

Case  v.  Colonial  Wharves  (1905)  53  Week. 

Rep.  (Eng.)  514 — 149. 
Casey  v.  Humphries  [1913]   6  B.  W.  C.  C. 

520,  W.  N.    (Eng.)   221,  29  Times 

L.  R.  647,  57  Sol.  Jo.  716 — 76,  78, 

79,  356,  357. 
Cass  v.  Butler  [1900]  1  Q.  B.  (Eng.)  777,  69 

L.  J.  Q.  B.  N.  S.  362,  64  J.  P.  261, 

48  Week.  Rep.  309,  82  L.  T.  N.  S. 

182,  16  Times  L.  R.  227 — 212. 
Castle  Spinning  Co.  v.  Atkinson  [1905]  1  K. 

B.  (Eng.)  336,  74  L.  J.  K.  B.  N.  S. 

265,  53  Week.  Rep.  360,  92  L.  T. 

N.  S.  147,  21  Times  L.  R.  192 — 172. 
Cater  v.  Grand  Trunk  R.  Co.  (1912)   18  Rev. 

de  Jur.    (Can.)   27,  cited  in  Cana- 
dian  Dig.  1912,  col.   825 — 144. 
Caton  v.  Summerlee  &  M.  Iron  &  Coal  Co. 

(1902)   4  Sc.  Sess.  Cas.  5th  series, 

989,  39   Scot.  L.  R.   762,  10   Scot. 

L.  T.  204 60.  195,  332. 

Cattermole  v.  Atlantic  Transport  Co.  [1902] 

1  K.  B.  (Eng.)  204,  50  Week.  Rep. 

129,  85  L.  T.  N.  S.  513,  18  Times 

L.  R.  102,  71  L.  J.  K.  B.  N.  S.  173, 

66  J.  P.  4,  4  W.  C.  C.  28 81,  204. 

Cavanaugh  v.  Morton  Salt  Co.   (1913)   152 

Wis.  375,  140  N.  W.  53 — 219. 
Cawdor  &  G.  Collieries  v.  Jones  (1909)  3  B. 

W.  C.  C.   (Eng.)  59 — 164. 
Cayzer  v.  Dickson   (1905)   7  Sc.  Sess.  Cas. 

5th  series   (Scot.)    723 — 205. 


496 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Central  R.  Co.  v.  Kellett  (1914)  86  N.  J.  L. 

84,  90  Atl.  1005,  5  N.  C.  C.  A.  529 
— 262. 

Cervio  v.  Granby  Consol.  Min.  Smelting  & 

Power  Co.  (1910)  15  B.  C.  192 — 62. 
Cessarini  v.  Hazel  (1914)  7  B.  W.  C.  C.  (Al- 
berta) 1059 — 184. 
Challis  v.  London  &  S.  W.  R.  Co.  [1905]  2 

K.  B.  (Eng.)  154,  74  L.  J.  K.  B.  N. 

S.  569,  53  Week.  Rep.  613,  93  L. 

T.  N.  S.  330,  21  Times  L.  R.  486, 

7  W.  C.  C.  23 38,  65,  233,  306, 

307,  310. 
Chambers  v.  Baltimore  &  0.  R.  Co.  207  U.  S. 

142,    52    L.    ed.    143,    28    Sup.    Ct. 

Rep.  34 435. 

v.  Whitehaven  Harbour  Comrs.  [1899] 

2  Q.  B.   (Erig.)   132,  68  L.  J.  Q.  B. 

N.  S.  740,  80  L.  T.  N.  S.  586,  47 

Week.   Rep.   533,   15   Times   L.   R. 

341,  1  W.  C.  C.  47 — 121,  196,  208. 
Chandler  v.  Great  Western  R.  Co.  [1912]  W. 

C.  Rep.  (Eng.)  168,  106  L.  T.  N.  S. 

479,  5  B.  W.  C.  C.  254 68,  293. 

v.  Smith  [1899]  2  Q.  B.  (Eng.)  506,  68 

L.   J.   Q.   B.   N.    S.    909,   81   L.   T. 

N.  S.  317,  47  Week.  Rep.  677,  15 

Times  L.  R.  480 — 72. 
Chapman  v.  Sage  &  Co.  (1915)  8  B.  W.  C.  C. 

(Eng.)    559 — 170. 
Charing   Cross,   E.   &   H.   R.    Co.    v.   Boots 

[1909]   2  K.  B.    (Eng.)    640,  78  L. 

J.  K.  B.  N.  S.  1115,  101  L.  T.  N. 

S.  53,  25  Times  L.  R.  683,  2  B.  W. 

C.  C.  385 166,  167. 

Charles  v.  Walker,  25  Times  L.  R.  609,  2 

B.  W.  C.  C.  5 40,  67,  301. 

Charvill  v.  Manser  [1912]  W.  C.  Rep.  (Eng.) 

193,  5  B.  W.  C.  C.  385 — 67. 
Cheek  v.  Harmsworth  Bros.  (1901;  C.  C.)  4 

W.  C.  C.  (Eng.)  3 36,  290. 

Chevers's  Case    (1914)    219  Mass.  244,  106 

N.  E.  861 — 248,  365. 
Cheverton  v.  Oceanic  Steam  Nav.  Co.  [1913] 

W.  C.  &  Ins.  Rep.   (Eng.)   462,  29 

Times   L.   R.   658,   6   B.  W.   C.  C. 

574 — 135. 

Chicago  &  E.  I.  R.  Co.  v.  Rouse,  178  111. 

132,  44  L.R.A.  410,  52  N.  E.  951,  5 

Am.  Xeg.  Rep.  549 430,  433. 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Solan,  169 

U.  S.  133.  42  L.  ed.  688,  18  Sup. 

Ct.  Rep.  289 452. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Thompson,  100 

Tex.  185,  7  L.R.A.(N.S.)    191,  123 

Am.  St.  Rep.  798,  97  S.  W.  459 

430. 
Childs  v.  American  Exp.  Co.  197  Mass.  337, 

84  X.  E.  128 335. 

Chilton   v.    Blair    (1914)    30    Times   L.   R. 

(Eng.)    623,  58  Sol.  Jo.  669,  7  B. 

W.  C.  C.   607,  aflPd  by  House  of 

Lords   in    (1915),   31   Times  L.  R. 

(Eng.)    437,   [1915]    W.  N.  203,  8 

B.  W.  C.  C.  1 — 52,  183. 
Chippewa  Bridge  Co.  v.  Durand,  122  Wis. 

85,  106  Am.  St.  Rep.  931,  99  N.  W. 
603 — 369. 

Chisholm  v.  Walker  [1909]  S.  C.  31,  46  Scot. 
L.  R.  24,  2  B.  W.  C.  C.  261 — 119, 
120. 


Chitty  v.  Nelson  (1908;  C.  C.)  126  L.  T.  Jo 

(Eng.)  172,  2  B.  W.  C.  C.  496 — 58. 
Chuter  v.  Ford  [1915]  2  K.  B.  (Eng.)  113, 

84  L.  J.  K.  B.  N.   S.  703,   [1915] 

W.  C.  &  Ins.  Rep.  104,  [1915]  W. 

N.  53,  31  Times  L.  R.  187,  8  B.  W. 

C.  C.  160 — 108,  110. 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v.  Hill,  161 

Ky.  237,  170  S.  W.  599 459. 

Clancy  v.  Fire  &  Police  Comrs.   150  Wis. 

630,  138  N.  W.  109 369. 

Clapp  v.   Carter    (1914)    110  L.   T.  N.   S, 

(Eng.)  491,  58  Sol.  Jo.  232,  [1914] 

W.  C.  &  Ins.  Rep.  82,  7  B.  W.  C. 

C.  28 — 89. 
Clark  v.  Bailie-Borough  Co-op.  Agri.  &  D. 

Soc.    (1913)    W.    C.    &    Ins.    Rep. 

(Eng.)    374,  as  cited  in  Law  Re- 
ports Current  Dig.  col.  772 119. 

v.  Gaslight  &  Coke  Co.  (1905)  21  Times 

L.  R.  (Eng.)  184,  7  W.  C.  C.  119 

146,  379,  380. 
v.  Jamieson  [1909]  S.  C.  132,  46  Scot.  L. 

R.  74 — 117. 
Clarke  v.  Andover,  207  Mass.  91,  92  N.  E. 

1013 — 364. 
v.  Knox   (1913)   6  B.  W.  C.  C.   (Eng.) 

695,  57  Sol.  Jo.  793 — 171. 
Clarkson  v.  Charente  S.  S.  Co.  [1913]  W.  C. 

&  Ins.  Rep.    (Eng.)    422,  6  B.  W. 

C.  C.  540 39. 

Clatworthy  v.  Green  (1902)  86  L.  T.  N.  S. 

(Eng.)  702,  66  J.  P.  596,  50  Week. 

Rep.  610,  18  Times  L.  R.  641,  4  W. 

C.  C.  152 163,  182. 

Clayton   v.   Dobbs    (1908)    2   B.   W.   C.   C. 

(Eng.)   488 — 31,  137. 
v.  Hardwick  Colliery  Co.    (1914)    7  B. 

W.  C.  C.   (Eng.)   643 65,  310. 

v.  Jones  Sewing  Mach.  Co.  [1908]  W. 

N.   (Eng.)  253 178. 

Clelland  v.   Singer  Mfg.  Co.    (1905)    7   Sc. 

Sess.  Cas.  5th  series  (Scot.)  975— 7 

168,  169. 
Clem    v.    Chalmers    Motor   Co.    (1914)    178 

Mich.  340,  144  N.  W.  848,  4  N.  C. 

C.  A.  876   (reported  in  full  herein, 

p.  352) — 238,  243,  355. 
Clement  v.  Bell  (1899)  1  Sc.  Sess.  Cas.  5th 

series,  924,   36  Scot.  L.  R.  725,  7 

Scot.  L.  T.  44 — 126. 
Cleverley  v.  Gaslight  &  C.  Co.  (1907;  H.  L.) 

24  Times  L.  R.  (Eng.)  93,  1  B.  W. 

C.  C.  82 134. 

Clifford   v.  Joy    (1909)    43  Ir.  Law   Times, 

192 44. 

Clover  v.  Hughes  [1910]  A.  C.  (Eng.)  242,  3 

B.  W.  C.  C.  275 30. 

Clover  C.  &  Co.  v.  Hughes  [1910]  A.  C. 
(Eng.)  242,  79  L.  J.  K.  B.  N.  S. 
470,  102  L.  T.  N.  S.  340,  26  Times 
L.  R.  359,  54  Sol.  Jo.  375,  3  B.  W. 

C.  C.  275,  47  Scot.  L.  R.  885 230, 

322. 

Coakley  v.  Addie  [1909]  S.  C.  545,  46  Scot. 

L.  R.  408,  2  B.  W.  C.  C.  437 — 186. 
v.  Mason  Mfg.  Co.  (1914)  —  R.  I.  — ,  90 

Atl.  1073 — 222. 
Coakley's  Case,  216  Mass.  71,  102  N.  E.  930, 

Ann.  Cas.  1915A,  867,  4  K  C.  C.  A. 

508 — 215,  250,  252. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


497 


Cochrane  v.  Traill  (Ct.  of  Sess.)  2  F.  (Scot.)  .  Cook  v.  The  Montreal  [1013]  W.  C.  &  Ins. 

794,  cited  in  2  Mews'   Dig.   Supp.  Rep.    (Eng.)    206,  108  L.  T.  N.  S. 

157G — 80.  164,  29  Times  L.  R.  233,  57  Sol.  Jo. 

Codling  v.  Mowlem  (Div.  Ct.)    [1914]  2  K.  |  282,  6  B.  W.  C.  C.  220 — 67. 

B.  (Eng.)  61,  83  L.  J.  K.  B.  N.  S.     Cooper  v.  Davenport  (1900)  16  Times  L.  R. 

445,  108  L.  T.  N.  S.  1033,  29  Times  (Eng.)  266 — 212. 


L.  R.  619,  [1914]  W.  C.  &  Ins.  Rep. 

1,  6  B.  W.  C.  C.  766,  aff'd  by  Ct. 

of  App.  in   [1914]   3  K.  B.   (Eng.) 

1055,  111  L.  T.  N.  S.  1086,  83  L. 

J.  K.  B  N.  S.  1727,  30  Times  L.  R. 

677,  58  Sol.  Jo.  783,  [1914]  W.  N. 

333,  7  B.  W.  C.  C.  786 — 74. 
Coe  v.  Fife  Coal  Co.   [1909]   S.  C.  393,  46 

Scot.  L.  R.  328 33,  36,  290,  295. 

Cogdon  v.  Sunderland  Gas  Co.  (1907;  C.  C.) 

1  B.  W.  C.  C.  (Eng.)  156 — 47,  318. 
Cohen  v.  Seabrook  Bros.   (1908;  Div.  Ct.) 

25  Times  L.  R.  (Eng.)  176 — 82. 
Cokolon  v.  Kentra    (1912)    5  B.  W.  C.  C. 

(Eng.)  658 41. 

Cole  v.  Cole,  27  Wis.  531 — 369. 

v.  Cunningham,  133  U.  S.  107,  33  L.  ed. 

538,  10  Sup.  Ct.  Rep.  269 435. 

v.  Evans  (1911)  4  B.  W.  C.  C.   (Eng.) 

138 47. 

v.  Shrubsall  [1912]  W.  C.  Rep.  (Eng.) 

226,  5  B.  W.  C.  C.  337 — 118. 
Coleman  v.  Southeastern  R.  Co.   (1899;  C. 

C.)  1  W.  C.  C.  (Eng.)  151 — 182. 
Coles  v.  Anderson   (1905)   69  J.  P.   (Eng.) 

201,  21  Times  L.  R.  204 208. 

Collins  v.  Collins  (1907)  2  I.  R.  (Ir.)  104 — 

57,  65,  310. 
Colquhoun  v.  Woolfe  [1912]  S.  C.  1190,  49 

Scot.  L.  R.  911,  [1912]  W.  C.  Rep. 

343 — 106. 
Coltman  v.  Morrison  (1914)  7  B.  W.  C.  C. 

194,    [1914]    W.    C.    &    Ins.    Rep. 

(Eng.)  44 — 89. 
Colville  v.  Tigue  (1906)  8  Sc.  Sess.  Cas.  5th 

series  (Scot.)  179 — 177. 
Colvine  v.  Anderson  &  Gibb   (1902)   5  Sc. 

Sess.  Cas.  5th  series,  255,  40  Scot. 

L.  R.  231,  10  Scot.  L.  T.  482 206. 

Com.  v.  Grey,  2  Gray,  501,  61  Am.  Dec.  476 

— 364. 
v.  Keenan,  139  Mass.  193,  29  N.  E.  477 

— 364. 
v.  Mosby,    163    Mass.    291,    39    N.    E. 

1030 — 280. 
Condron  v.  Paul  (1903)  6  Sc.  Sess.  Cas.  5th 

series,   29,   41    Scot.   L.   R.   33,   11 

Scot.  L.  T.  383 75,  355. 

Connole  v.  Norfolk  &  W.  R.  Co.  (1914)  216 

Fed.  823 462. 

Connor   v.   Meads    (1912)    5   B.   W.   C.   C. 

(Eng.)  435 — 183. 
v.  New  York,  N.  H.  &  H.  R.  Co.  28  R.  I. 

560,  18  L.R.A.(N.S.)   1252,  68  Atl. 

481,  13  Ann.  Cas.  1033 430. 

Consolidated  Arizona  Smelting  Co.  v.  Ujack, 

15  Ariz.  382,  139  Pac.  465,  5  N.  C. 

C.  A.  742 — 223. 
Conway  v.  Pumpherston  Oil  Co.  [1911]  S.  C. 

660,  48  Scot.  L.  R.  632,  4  B.  W.  C. 

C.  392 — 53. 
Cook  v.  Bonnybridge  Silica  &  Fireclay  Co. 

(1914)  51  Scot.  L.  R.  529,  7  B.  W. 

C.  C.  907 — 128. 
v.  Manvers   Main   Collieries    (1914)    7 

B.  W.  C.  C.  (Eng.)  696 47,  318. 


32 


v.  Fife  Coal  Co.  [1906-07]  S.  C.  (Scot.) 

564 — 125. 
v.  Wales  (1915)  31  Times  L.  R.  (Eng.) 

506 80. 

v.  Wright  [1902]  A.  C.  (Eng.)  302,  71 

L.  J.  K.  B.  N.  S.  642,  86  L.  T.  N. 

S.  776,  18  Times  L.  R.  622,  4  W. 

C.  C.  75,  51  Week.  Rep.  12 — 27, 

96,  212. 
Cooper  &  Greig  v.  Adam  (1905)  7  Sc.  Sess. 

Cas.   5th  series    (Scot.)    681 — 208, 

211. 
Corbet  v.  Glasgow  Iron  &  Steel  Co.  /1903) 

5  Sc.  Sess.  Cas.  5th  series,  782,  40 
Scot.  L.  R.  601,  11  Scot.  L.  T.  60 — 
143. 

Corbett  v.  Pitt  (1915)  8  B.  W.  C.  C.  (Eng.) 

466 — 53. 
Corfield  v.  Coryell,  4  Wash.  C.  C.  371,  Fed. 

Cas.  No.  3,230 435. 

Corral  v.  William  H.  Hamlyn  &  Son  (1915) 

—  R.  I  — ,  94  Atl.  877 — 238,  241, 

259. 
Cory  v.  France  [1911]  1  K.  B.  (Eng.)  114, 

80  L.  J.  K.  B.  N.  S.  341,  103  L.  T. 

N.  S.  649,  27  Times  L.  R.  18,  55 

Sol.  Jo.  10,  11  Asp.  Mar.  L.  Cas. 

499 102,   362. 

v.  Hughes   [1911]   2  K.  B.   (Eng.)   738, 

80  L.  J.  K.  B.  N.  S.  1307,  105  L. 

T.  N.  S.  274,  27  Times  L.  R.  498, 

4  B.  W.  C.  C.  291 — 171. 
Cosgrove  v.  Partington  (1900)  17  Times  L. 

R.  (Eng.)  39,  64  J.  P.  788 — 208. 
Costello  v.  The  Pigeon  [1913]  A.  C.  (Eng.) 

407,  82  L.  J.  K.  B.  N.  S.  873,  108  L. 

T.  N.  S.  927,  29  Times  L.  R.  595, 

57  Sol.  Jo.  609,  [1913]  W.  N.  187, 

50  Scot.  L.  R.  976,   [1913]   W.  C. 

6  Ins.  Rep.  410,  6  B.  W.  C.  C.  480 
— 105,  106. 

Cotter  v.  Johnson  (1911)  45  Ir.  Law  Times, 

259,  5  B.  W.  C.  C.  568 97,  364. 

Coulson  v.  South  Moor  Colliery  Co.  (1915) 

84  L.  J.  K.  B.  N.  S.  (Eng.)  508,  112 

L.  T.  N.  S.  901,  31  Times  L.  R.  207, 

[1914]    W.    C.    &    Ins.    Rep.    161, 

[1915]  W.  N.  83,  8  B.  W.  C.  C.  253 

— 91. 
v.   Worshipful    Company    of    Drapers 

(1911)  5  B.  W.  C.  C.  (Eng.)  136 

189. 
Coulthard  v.  Consett  Iron  Co.  [1905]  2  K. 

B.   (Eng.)   869,  22  Times  L.  R.  25, 

75  L.  J.  K.  B.  N.  S.  60,  54  Week. 

Rep.  139,  93  L.  T.  N.  S.  756 — 124, 

370. 
Courter  v.  Simpson  Constr.  Co.  (1914)  264 

HI.  488,  106  N.  E.  350,  6  N.  C.  C.  A. 

548 — 270,  411. 
Cowan  v.   Simpson    (1909)    3  B.  W.  C.  C. 

(Eng.)  4 147,  148. 

Cox  v.  Braithwaite   (1912)    5  B.  W.  C.  C. 

(Eng.)  648 — 165. 


498 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Coyle  v.  Watson  [1915]  A.  C.  (Eng.)  1,  111 

L.  T.  N.  S.  347,  30  Times  L.  R. 

501,  58  Sol.  Jo.  533,  [1914]  W.  N. 

195,  [1914]  W.  Ins.  &  C.  Rep.  228, 

7  B.  W.  C.  C.  259,  83  L.  J.  P.  C. 

N.   S.   307,  reversing   [1913]   S.  C. 

593,  50  Scot.  L.  R.  415,  [1913]  W. 

C.  &  Ins.  Rep.  223,  6  B.  W.  C.  C. 

416 291. 

Coylton  Coal  Co.  v.  Davidson  (1905)  7  Sc.. 

Sess.  Cas.  5th  series  (Scot.)  727 — 

195. 
Coyne  v.  Glasgow  S.  Coasters  Co.    (1906- 

1907)  Sc.  Sess.  Cas.  (Scot.)  112 — 

177,  206. 
Cozoff  v.  Welch  (1914;  C.  C.)  7  B.  W.  C.  C. 

(B.  C.)  1064 — 179. 
Craig  v.  Continental  Ins.  Co.  141  U.  S.  638, 

35   L.    ed.    886,    12    Sup.   Ct.   Rep. 

97 449. 

v.  Royal  Ins.  Co.    (1915;   Div.  Ct.)    84 

L.  J.  K.  B.  N.  S.  (Eng.)  333,  112  L. 

T.  N.  S.  291,  [1915]  W.  C.  &  Ins. 

Rep. 139,  [1915]  H.  B.  R.  57,  [1914] 

W.  N.  442 99. 

v.  The   Calabria    [1914]    S.   C.   762,   2 

Scot.  L.  T.  30,  51  Scot.  L.  R.  657,  7 

B.  W.  C.  C.  932 66. 

Cranfield  v.  Ansell   (1910)   4  B.  W.  C.  C. 

(Eng.)  57 — 170. 
Craske  v.  Wigan  [1909]  2  K.  B.  (Eng.)  635, 

78  L.  J.  K.  B.  N.  S.  994,  101  L.  T. 

N.   S.   6,  25   Times  L.  R.   632,  53 

Sol.  Jo.  560 41,  240,  307. 

Creamer  Case.     See  State  ex  rel.  Yaple  v. 

Creamer. 
Creighton  v.  Lowry    [1915]   W.  C.   &  Ins. 

Rep.   (Eng.)  69,  8  B.  W.  C.  C.  250 

141. 

Cremin  v.  Mordecai  (1915)  —  App.  Div.  — , 

155  N.  Y.  Supp.  859 — 218. 
Cremins  v.  Guest  [1908]  1  K.  B.  (Eng.)  469, 

77  L.  J.  K.  B.  N.  S.  326,  24  Times 

L.  R.  189,  98  L.  T.  N.  S.  335,  1  B. 

W.  C.  C.  160 61,  331. 

Cribb  v.  Kynoch  [1908]  2  K.  B.  (Eng.)  551, 

77  L.  J.  K.  B.  N.  S.  1001,  99  L.  T. 

N.  S.  216,  24  Times  L.  R.  736,  52 

Sol.  Jo.  581 73,  81. 

Cripp's  Case   (1914)   216  Mass.  586,  104  N. 

E.  565,  Ann.  Cas.  1915B,  828 — 225, 

254,  270,  271,  361. 
Crockett  v.   State  Insurance  Fund    (1915) 

—  App.  Div.  — ,  155  N.  Y.  Supp. 

692 — 269. 
Cronin  v.  Silver  (1911)  4  B.  W.  C.  C.  (Eng.) 

221 — 49. 
Crooks  v.  Tazewell  Coal  Co.  (1914)  263  I'l. 

343,  105  N.  E.  13,  5  N.  C.  C.  A.  410, 

Ann.   Cas.    1915C,   304 — 219,   222, 

410. 
Crossfield  v.  Tanian  [1900]  2  Q.  B.  (Eng.) 

629,  69  L.  J.  Q.  B.  N.  S.  790,  82 

L.  T.  N.  S.  813,  16  Times  L.  R.  476, 

48  Week.  Rep.   609 164,  165. 

Cross,  T.  &  Co.  v.  Catteral,  an  unreported 

decision    of    the    House    of    Lords 


Croteau  v.  Victoriaville  Furniture  Co.  (1911) 
Rap.  Jud.  Quebec  40  C.  S.  44 — 78. 

Crouse  v.  Chicago  &  N.  W.  R.  Co.  102  Wis. 
196,  78  N.  W.  446 [9]  473. 


Crowther  v.  West  Riding  Window  Cleaning 

Co.   [1904]  1  K.  B.  (Eng.)   232,  73 

L.  J.  K.  B.  N.  S.  71,  68  J.  P.  122, 

52  Week.  Rep.  374 — 199. 
Crucible  Steel  Forge  Co.  v.  Moir  (1915)  135 

C.  C.  A.  49,  219  Fed.  151,  8  N.  C. 

C.  A.  1006 — 219. 
Cruden  v.  Wemyss  Coal  Co.    [1913]    S.  C. 

534,  50  Scot.  L.  R.  344,  [1913]  W. 

C.  &  Ins.  Rep.  188,  6  B.  W.  C.  C. 

393 — 162. 
Cue  v.  Court  of  London  Authority   [1914] 

3  K.  B.   (Eng.)   892,  [1914]  W.  N. 

280,  137  L.  T.  Jo.  211,  83  L.  J.  K.  B. 

N.   S.  1445,   111   L.   T.  N.  S.   736, 

7  B.  W.  C.  C.  447 — 151,  152,  374. 
Culshaw    v.    Crow's    Nest    Pass    Coal    Co. 

(1914;  B.  C.)  7  B.  W.  C.  C.  1050 

44. 

Cunningham  v.  Buffalo  Copper  &  Brass  Roll- 
ing Mills   (1915)   —  App.  Div.  — , 

155  N.   Y.  Supp.  797 — 267. 
v.  M'Gregor  (1904)  3  Sc.  Sess.  Cas.  5th 

series,  775,  38   Scot.  L.  R.  574,  9 

Scot.  L.  T.  36 — 126,  371. 
v.  Northwestern  Improv.  Co.  (1911)  44 

Mont.  180,  119  Pac.  554,  1  N.  C.  C. 

A.   720 399,   418,   423,   425,   427. 

Curry  v.  Doxford  [1915]  W.  C.  &  Ins.  Rep. 

(Ens.)  81,  8  B.  W.  C.  C.  19 — 141. 
Curtis  v.  Black  [1909]  2  K.  B.  (Eng.)  529, 

78  L.  J.  K.  B.  N.  S.  1022,  100  L.  T. 

N.  S.  977,  25  Times  L.  R.  621,  53 

Sol.  Jo.  576 — 108. 
v.  Plumptre   (1913)   W.  C.  &  Ins.  Rep. 

(Eng.)  195,  6  B.  W.  C.  C.  87 119. 

v.  Talbot   &   K.   Infirmary   Committee 

(1911)   5  B.  W.  C.  C.  (Eng.)  41 — 

44. 
Cutsforth  v.  Johnson  [1913]  W.  C.  &  Ins. 

Rep.  (Eng.)   131,  6  B.  W.  C.  C.  28, 

108  L.  T.  N.  S.  138 — 103,  361. 


Daff  v.  Midland  Colliery  Owners'  Mut.  In- 
demnity Co.  (1913;  H.  L.)  82  L.  J. 
K.  B.  N.  S.  (Eng.)  1340,  109  L.  T. 
N.  S.  418,  29  Times  L.  R.  730,  57 
Sol.  Jo.  773,  [1913]  W.  N.  256,  6 
B.  W.  C.  C.  799 — 99. 

Dailly  v.  Watson  (1900)  2  Sc.  Sess.  Cas. 
5th  series,  1044,  37  Scot.  L.  R.  782, 
7  Scot.  L.  T.  73 — 77,  357. 

Daily  News  v.  McNamara  &  Co.  (1913)  7 
B.  W.  C.  C.  11 — 102,  362. 

Dalgiesh  v.  Gartside  [1914]  W.  C.  &  Ins. 
Rep.  (Eng.)  319,  7  B.  W.  C.  C.  535 
88,  89. 

Dalgleish  v.  Edinburgh  Roperie  &  Sailcloth 
Co.  [1913]  S.  C.  1007,  50  Scot.  L.  R. 
916,  6  B.  W.  C.  C.  867 — 152. 

Daniel  v.  Ocean  Coal  Co.  [1900]  2  Q.  B. 
(Eng.)  250,  82  L.  T.  N.  S.  523, 
69  L.  J.  Q.  B.  N.  S.  567,  64  J.  P. 
436,  48  Week.  Rep.  467,  16  Times 
L.  R.  368,  2  W.  C.  C.  135 — 162. 

Daniels  v.  New  York,  N.  H.  &  H.  R.  Co.  183 
Mass.  393,  62  L.R.A.  751,  67  N.  E. 

424 334-336. 

v.  Tearney,  102  U.   S.  415,  26   L.  ed. 
187 — 377. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


499 


Darlington  v.  Roscoe  [1907]  1  K.  B.  (Eng.) 

219,  76  L.  J.  K.  B.  N.  S.  371,  96 

L.  T.  N.  S.  179,  23  Times  L.  R.  167 

135. 

Darnley  v.  Canadian  P.  R.  Co.  (1908)  14  B. 

C.  15,  2  B.  W.  C.  C.  505 78,  190, 

356. 
Darroll  v.  Glasgow  Iron  &  Steel  Co.  [1913] 

S.  C.  387,  50  Scot.  L.  R.  226,  [1913] 

W.  C.-&  Ins.  Rep.  80,  6  B.  W.  C.  C. 

354 — 109. 
David  v.  Windsor  Steam  Coal  Co.   (1911) 

4  B.  W.  C.  C.  (Eng.)  177 — 138. 
Davidheiser  v.  Hay  Foundry  &  Iron  Works 

(1915)  —  N.  J.  — ,  94  Atl.  309 

443. 
Davidson  v.  Summerlee  &  M.  Iron  &  Steel 

Co.    (1903)    5    Sc.    Sess.    Cas.    5th 

series,  991,  40  Scot.  L.  R.  764,  11 

Scott.  L.  T.  269 — 161. 
Davies  v.  Crown  Perfumery  Co.  [1913]  W. 

C.  &  Ins.  Rep.  (Eng.)  484,  6  B.  W. 

C.  C.  649 — 49. 
v.  Gillespie    (1911)    105    L.    T.    N.    S. 

(Eng.)    494,  28  Times  L.  R.  6,  56 

Sol.  Jo.  11,  5  B.  W.  C.  C.  64 38, 

43,  291. 
v.  Point  of  Ayr  Collieries   (1909)  2  B. 

W.  C.  C.  (Eng.)  157 93. 

v.  Rhymney  Iron  Co.   (1900)  16  Times 

L.  R.   (Eng.)  329,  2  W.  C.  C.  22 

60,  331. 
Davis  v.  Hill's  Plymouth  Colliery,  3  B.  W. 

C.  C.  514 — 301. 
v.  New  York  &  N.  E.  R.  Co.  143  Mass. 

301,  58  Am.  Rep.  138,  9  N.  E.  815 

430. 

Day  v.   Markham    (1904;    C.   C.)    39  L.  J. 

(Eng.)  164,  6  W.  C.  C.  115 — 124. 
Dazy  v.  Apponaug  Co.   (1914)   36  R.  I.  81, 

89  Atl.   160,  4  N.  C.  C.  A.  594 — 

249,  250. 
Dean  v.  London  &  N.  W.  R.  Co.  (1910)  3  B. 

W.  C.  C.  (Eng.)  351 — 134. 
v.  Rubian  Art  Pottery  Co.  [1914]  2  K. 

B.    (Eng.)    213,  83  L.  J.  K.  B.  N. 

S.   799,   110   L.   T.   N.    S.    594,   30 

Times  L.  R.  283,  58  Sol.  Jo.  302, 

[1914]   W.  N.  45,   [1914]  W.  C.  & 

Ins.  Rep.  147,  7  B.  W.  C.  C.  209 — 

108,  109. 
Dearborn    v.    Peugeot    Auto    Import.    Co. 

(1915)  —  App.  Div.  — ,  155  N.  Y. 

Supp.  769 — 224. 
De  Constantin  v.  Public  Service  Commission 

(1914)   —  W.  Va.  — ,  83  S.  E.  88 

(reported  in  full  herein,  p.  329)^— 

235,  270,  301,  331. 
Deeny  v.  Wright  &  C.  Lighterage  Co.  36  N. 

J.  L.  121 442. 

De  Fazio  v.  Goldschmidt  Detinning  Co.  — 

N.  J.  L.  — ,  88  Atl.  705,  4  N.  C.  C. 

A.  716 — 231,  [14]  478. 
De  Filippis  v.  Falkenberg   (1915)    —  App. 

Div.  — .  155  N.  Y.  Supp.  761 231, 

237,  240,  317. 
De  Francesco  v.  Piney  Min.  Co.   (1915)   — 

W.  Va.  — ,  86  S.  E.  77 413,  414. 

Deibeikis  v.  Link-Belt  Co.   (1913)   261  111. 

454.    104    N.    E.    211,    Ann.    Cas. 

1915A,  241,  5  N.  C.  C.  A.  401 — 221, 

401,  410,  414,  423,  425-428,  460. 


Deisenrieter  v.   Kraus-Merkel  Malting  Co. 

92  Wis.  164,  66  N.  W.  112 280. 

I  De  la  Gardelle  v.  Hampton  Co.  (1915)   167 

App.    Div.    617,    153    N.    Y.    Supp. 

162 — 218. 
Demers  v.  McCrae  (1911)  Rap.  Jud.  Quebec 

40  S.  C.  123 — 114. 
Dempsey  v.   Caldwell    [1914]    S.   C.   28,  51 

Scot.  L.  R.  16,  [1913]  2  Scot.  L.  T. 

267,   7   B.  W.  C.  C.   823 169. 

Dempster  v.  Baird  [1908]  S.  C.  722,  45  Scot. 

L.  R.  432,  1  B.  W.  C.  C.  62 — 187. 
v.  Baird   (1909)   S.  C.  127,  46  Scot.  L. 

R.  119 — 187. 
v.  Hunter   (1902)   4  Sc.  Sess.  Cas.  5th 

series,  580,  39   Scot.   L.  R.  395,  9 

Scot.  L.  T.  450 — 98. 
Dennick  v.  Central  R.  Co.  103  U.  S.  11,  26 

L.  ed.  439 433. 

Derbyshire  v.  Hetherington  (1914)  7  B.  W. 

C.  C.   (Eng.)   677 — 183. 
Devine  v.  Caledonian  R.  Co.   (1899)    1  Sc. 

Sess.  Cas.  5th  series,  1105,  36  Scot. 

L.  R.  877,  7   Scot.  L.  T.  99 — 56, 

194. 
v.  Chicago,  R.  I.  &  P.  R.  Co.  266  111. 

258,  107  N.  E.  595 459. 

Devitt  v.  Bainbridge  [1909]  2  K.  B.  (Eng.) 

802,  78  L.  J.  K.  B.  N.  S.  1059,  101 

L.  T.  N.  S.  299 — 161. 
Devlin  v.  Chapel  Coal  Co.   (1914)   52  Scot. 

L.    R.   83,    cited    in    Butterworths' 

Dig.  1914,  col.  430 — 138. 
v.  Pelaw  Main  Collieries    (1912)    5  B. 

W.  C.  C.  (Eng.)  349 — 125. 
De  Voe  v.  New  York  State  R.  Co.   (1915) 

169  App.  Div.  472,  155  N.  Y.  Supp. 

12 — 216,  217,  234,  314. 
Devons  v.  Anderson   [1911]    S.  C.  181,  48 
-  Scot.  L.  R.  187,  4  B.  W.  C.  C.  354 

— 85. 
Dewberry  v.  Southern  R.  Co.   (C.  C.)   175 

Fed.  307 — 455. 
Dewhurst  v.  Mather  (1908)  2  K.  B.  754,  77 

L.  J.  K.  B.  N.  S.  1077,  99  L.  T.  N. 

S.  568,  24  Times  L.  R.  819,  52  Sol. 

Jo.  681,  1  B.  W.  C.  C.  328 120, 

365. 
De  Zeng  Standard  Co.  v.  Pressey  (1914)  86 

N.  J.  L.  469,  92  Atl.  278 255,  264, 

265. 
Diaz's  Case  (1914)  217  Mass.  36,  104  N.  E. 

384,  5  N.  C.  C.  A.  609 — 266. 
Dickson  v.  Scott  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)   67,  30  Times  L.  R.  256,  7 

B.  W.  C.  C.  1007 — 102,  362. 
Dierkes  v.  Hauxhurst  Land  Co.  80  N.  J.  L. 

369,  34  L.R.A.(N.S.)  693,  79  Atl. 
361,  83  N.  J.  L.  623,  83  Atl.  911 — 
317. 

Dietz  v.  Big  Muddy  Coal  &  I.  Co.  (1914) 
263  111.  480,  105  N.  E.  289,  5  N. 

C.  C.  A.  419 — 219-221,  410. 
Dight  v.  Craster  Hall  [1913]  3  K.  B.  (Eng.) 

700,  82  L.  J.  K.  B.  N.  S.  1307,  109 
L.  T.  N.  S.  200,  29  Times  L.  R.  676, 
[1913]  W.  N.  259,  6  B.  W.  C.  C. 

674 92. 

Dinnington  Main  Coal  Co.  v.  Bruins  [1912] 
W.  C.  Rep.  (Eng.)  173,  5  B.  W.  C. 
C.  367 — 148. 


500 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Disourdi  v.  Sullivan  Group  Min.  Co.  (1909) 

14  B.  C.  241 — 178. 
v.  Sullivan  Group  Min.  Co.   (1909)    14 

B.  C.  256 — 100. 
v.  Sullivan  Group  Min.  Co.    (1909)    14 

B.  C.  273 — 100. 
v.  Sullivan  Group  Min.  Co.    (1910)    15 

B.  C.  305 — 100. 

Dittmar  v.  The  V.  593  [1909]  1  K.  B.  (Eng.) 

389,  78  L.  J.  K.  B.  N.  S.  523,  100  L. 

T.  N.  S.  212,  25  Times  L.  R.  188 

97. 
Dixon  v.  The  Ambient   [1912]  W.  C.  Rep. 

(Eng.)  224,  5  B.  W.  C.  C.  428 66. 

Dobbies  v.  Egypt  &  L.  S.  S.  Co.  [1913]  S. 

C.  364,  50  Scot.  L.  R.  222,  [1913] 
W.  C.  &  Ins.  Rep.  75,  6  B.  W.  C. 
C.  348 — 122,  123. 

Dobby  v.  Pease  (1909)  2  B.  W.  C.  C.  (Eng.) 

370 148,  380. 

Dobson  v.  British  Oil  &  Cake  Mills  (1912) 

106  L.  T.  N.  S.  (Eng.)  922,  [1912] 

W.  C.  Rep.  207,  5  B.  W.  C.  C.  405 

— 152. 
v.  United  Collieries   (1905)   8  Sc.  Seas. 

Cas.    (Scot.)    5th   series,   241 — 76, 

356. 
Doggett  v.  Waterloo  Taxi-Cab  Co.   [1910] 

2  K.  B.  (Eng.)  336,  102  L.  T.  N.  S. 

874,  79  L.  J.  K.  B.  N.  S.  1085,  26 

Times  L.  R.  491,  54  Sol.  Jo.  541,  3 

B.  W.  C.  C.  371 — 114. 

Doharty  v.  Boyd  [1909]   S.  C.  87,  46  Scot. 

L.  R.  71 — 118,  138. 
Doherty,  Re  (1915)  —  Mass.  — ,  109  K  E. 

887 — 242,  266,  267,  269. 
Dolan  v.  Ward   [1915]   W.  C.  &  Ins.  Rep. 

(Eng.)  274,  8  B.  W.  C.  C.  514 141, 

389. 
Donaghy  v.  Ulster  Spinning  Co.   (1912)   46 

Ir.  Law   Times,  33,    [1912]   W.  C. 

Rep.    183,    cited    in    Butterworths' 

Dig.   1912,   p.  432 181. 

Donaldson  Bros.  v.  Cowan  [1909]  S.  C.  1292, 

46  Scot.  L.  R.  920,  2  B.  W.  C.  C. 

390 — 166. 
Donnachie  v.  United  Collieries  [1910]  S.  C. 

503,  47  Scot.  L.  R.  412 — 77,  357. 
Donnelly  v.  Baird  &  Co.  [1908]  S.  C.  (Scot.) 

536,  45  Scot.  L.  R.  394,  1  B.  W. 

C.  C.  95 — 139,  385,  388. 
Donovan's   Case,  217   Mass.   76,  104  N.  E. 

431,  Ann.  Cas.  1915C,  778,  4  N.  C. 

C.  A.  549 235,  266,  331,  379. 

Dooley  v.  Sullivan   (1914)   218  Mass.  597, 

106  N.  E.  604 219. 

Doswell  v.  Cowell   (1906)      95  L.  T.  N".  S. 

(Eng.)   38,  22  Times  L.  R.  628,  8 

W   C    C   33 202 

Dothie  v.  MacAndrew  &  Co.  [1908]  1  K.  B. 

(Eng.)    803,  77  L.  J.  K.  B.  K  S. 

388,  98  L.  T.  N.  S.  495,  24  Times 

L.  R.  326 — 160. 
Dotzauer  v.  Strand  Palace  Hotel   (1910)   3 

B.  W.  C.  C.    (Eng.)    387 — 33,  35, 

294. 
Dougal  v.  Westbrook   [1913]  W.  C.  &  Ins. 

Rep.  (Eng.)  522,  6  B.  W.  C.  C.  705 

— 56. 
Doughton  v.  Hickman  [1913]  W.  C.  &  Ins. 

Rep.  (Eng.)  143,  6  B.  W.  C.  C.  77 

— 34,294. 


Douglas  v.  United  Mineral  Min.  Co.  (1900) 

2  W.  C.  C.  (Eng.)  15 53. 

Dowds  v.  Bennie,  40  Scot.  L.  R.  219,  5  Sc. 

Sess.  Cas.  5th  series,  268,  10  Scot. 

L.  T.  439 — 135,  191,  385. 
Doyle  v.  Beattie  (1900)  2  Sc.  Sess.  Cas.  5th 

series,  1166,  37  Scot.  L.  R.  915,  8 

Scot.  L.  T.  131 — 134,  156. 
v.  Cork  Steam  Packet  Co.  [1912]  W.  C. 

Rep.    (Eng.)    203,    5>  B.    W.    C.   C. 

350 174. 

v.  Moirs   (1915)   48  N.  S.  473 47. 

Dozier   v.   Fidelity    &   C.    Co.    (C.    C.)    13 

L.R.A.  114,  46  Fed.  446 — 278. 
Dragovich  v.  Iroquois  Iron  Co.   (1915)   269 

111.  478,  109  X.  E.  999 — 238,  272, 

428. 
Dredge  v.  Conway   [1901]    2  K.  B.   (Eng.) 

42,  84  L.  T.  N.  S.  345,  70  L.  J.  Q. 

B.  N.  S.  494,  49  Week.  Rep.  518, 
17  Times  L.  R.  355 — 198. 

Driscoll  v.  Allis-Chalmers  Co.  144  Wis.  468, 

129  N.  W.  408 — 397. 
Duberley  v.  Mace  (1913)  W.  C.  &  Ins.  Rep. 

(Eng.)  199,  6  B.  W.  C.  C.  82 — 142. 
Dulligan  v.  Barber  Asphalt  Paving  Co.  201 

Mass.  227,  87  N.  E.  567 — 281. 
Dumont  v.  United  States,  98  U.  S.  142,  25 

L.   ed.   65 — 364. 
Dundee  &  A.  Joint  R.  Co.  v.  Carlin  (1901) 

3  Sc.  Sess.  Cas.  5th  series,  843,  38 
Scot.  L.  R.  635,  9  Scot.  L.  T.  55 — 
98. 

Dunham  v.  Clare  [1902]  2  K.  B.  (Eng.)  292, 
71  L.  J.  K.  B.  N.  S.  683,  66  J.  P. 
612,  50  Week.  Rep.  596,  86  L.  T.  N. 
S.  751,  18  Times  L.  R.  645,  4  W. 

C.  C.  102 36,  132,  133,  292,  336. 

Dunlop  v.  Rankin   (1901)   4  Sc^Sess.  Cas. 

5th  series,  203,  39  Scot.  L.  R.  146 

— 80. 
Dunn,  Ex  parte   (1911)   28  W.  N.  New  So. 

Wales,  9 — 92. 
Dunnigan  v.  Cavan  [1911]  S.  C.  579,  48  Scot. 

L.  R.  459,  4  B.  W.  C.  C.  386 — 133, 

292,  293. 
Duprey's  Case  (1914)  219  Mass.  189,  106  N. 

E.  686 — 255,  256,  260,  269,  380. 
Duquette  v.  Lake  Megantic  Pulp  Co.  (1911) 

12  Quebec  Pr.  Rep.  359 — 117. 
Durham  v.  Brown  Bros.   (1898)  1  Sc.  Sess. 

Cas.   5th    series,   279,   36    Scot.   L. 

R.  190,  6  Scot.  L.  T.  239 — 50,  56. 
Durkin  v.  Distillers  Co.  [1914;  L.  O.]  W.  C. 

&  Ins.  Rep.  (Eng.)  28,  cited  in  Law 

Repts.  Current  Dig.  1914,  col.  808 


Durocher  v.  Kinsella  (1911)  Rap.  Jud.  Que- 
bec 40  C.  S.  459 40. 

Durrant  v.  Smith  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)  282,  7  B.  W.  C.  C.  415 — 70. 
Durrie  v.  Warren    (1898)    15  Times  L.  R. 

(Eng.)    365,   1   W.   C.  C.  78 204, 

207. 
Dutka  v.  Bankhead  Mines  (1915)   23  D.  L. 

R.  (Alberta)  273 173. 

Dyer   v.   Swift  Cycle   Co.    [1905]    2  K.   B. 

(Eng.)    36,   73   L.   J.   K.   B.   N.   S. 

566,  68  J.  P.  394,  52  Week.  Rep. 

483,  90  L.  T.  N.  S.  613,  20  Times 

L.  R.  429 — 196. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


501 


Dyer  v.  Wilsons  &  C.  Coal  Co.  (1914)  52 
Scot.  L.  R.  114,  8  B.  W.  C.  C.  367, 
[1915]  S.  C.  199 — 147,  381. 

Dyhouse  v.  Great  Western  R.  Co.  (1913)  109 
L.  T.  N.  S.  (Eng.)  193,  [1913]  W. 
C.  &  Ins.  Rep.  491,  6  B.  W.  C.  C. 
691 68. 


Eagle  Chemical  Co.  v.  Nowak  (1915)  —  Wis. 

— ,  154  N.  W.  636 266. 

Eames  v.  New  England  Worsted  Co.  11  Met. 

570 — 280. 
Earnshaw  v.  Lancashire  &  Y.  R.  Co.  (1903; 

C.  C.)   115  L.  T.  Jo.   (Eng.)    89,  5 

B.  W.  C.  C.  28 — 59,  320. 
Eastern  Kentucky  Coal  Lands  Corp.  v.  Com. 

127  Ky.  717,  106  S.  W.  275 397. 

East  Tennessee,  V.  &  G.  R.  Co.  v.  Lewis,  89 

Tenn.  235,  14  S.  W.  603 434. 

Eaton  v.  Evans  (1911)  5  B.  W.  C.  C.  (Eng.) 

82 — 90. 
Eaves  v.  Blaenclydach  Colliery  Co.  [1909]  2 

K.  B.   (Eng.)  73,  78  L.  J.  K.  B.  N. 

S.  809,  100  L.  T.  N.  S.  751 — 165. 
Edge  v.  Gorton  [1912]  3  K.  B.  (Eng.)  360, 

81  L.  J.  K.  B.  N.  S.  1185,  107  L.  T. 

N.  S.  340,  28  Times  L.  R.  566,  56 

Sol.  Jo.  719,   [1912]   W.  N.  217,  5 

B.  W.  C.  C.  614 — 152. 
Edmondsons  v.  Parker  (1911)  107  L.  T.  N. 

S.   (Eng.)  339,  5  B.  W.  C.  C.  70 

171. 
Edmunds  v.  The  Peterston  (1911)  28  Times 

L.  R.  (Eng.)  18 — 53. 
Edwards  v.  Alyn  Steel  Tinplate  Co.  (1910) 

3  B.  W.  C.  C.  (Eng.)  141 149. 

v.  Godfrey  [1899]  2  Q.  B.   (Eng.)  333, 

68  L.  J.  Q.  B.  N.  S.  666,  80  L.  T.  N. 

S.    672,    15    Times    L.    R.    365,   47 

Week.  Rep.  551 81. 

v.  Wingham     Agri.     Implements     Co. 

[1913]   3  K.  B.    (Eng.)    596,  82  L. 

J.  K.  B.  N.  S.  998,  109  L.  T.  N.  S. 

50,   [1913]  W.  N.  221,  57  Sol.  Jo. 

701,  [1913]  W.  C.  &  Ins.  Rep.  642, 

6  B.  W.  C.  C.  511—48,  60,  61,  331, 

332. 
Edwardsen  v.  Jarvis  Lighterage  Co.  (1915) 

168  App.  Div.  368,  153  N.  Y.  Supp. 

391 445. 

Egerton  v.  Moore  [1912]  2  K.  B.  (Eng.)  308, 
81  L.  J.  K.  B.  N.  S.  696,  106  L.  T. 
N.  S.  663,  [1912]  W.  C.  Rep.  250, 
[1912]  W.  N.  89,  5  B.  W.  C.  C. 
284 87,  88,  91. 

Eke  v.  Hart-Dyke  [1910]  2  K.  B.  (Eng.) 
677,  80  L.  J.  K.  B.  N.  S.  90,  103 
L.  T.  N.  S.  174,  26  Times  L.  R.  613, 
3  B.  W.  C.  C.  482,  3  N.  C.  C.  A. 
230 31,  35,  90,  278,  290. 

Eldorado  Coal  &  Min.  Co.  v.  Mariotti  (1914) 
131  C.  C.  A.  359,  215  Fed.  51,  7 
N.  C.  C.  A.  966 — 224. 

Elliott  v.  Curry  (1912)  46  Ir.  Law  Times, 
72,  [1912]  W.  C.  Rep.  188,  5  B.  W. 

C.  C.  584 — 139. 

v.  Hall  (1885)  L.  R.  15  Q.  B.  Div. 
(Eng.)  315,  54  L.  J.  Q.  B.  N.  S. 
518,  34  Week.  Rep.  16 — 102. 


|  Elliott  v.  Liggens  [1902]  2  K.  B.  (Eng.)  84r 

71  L.  J.  K.  B.  N.  S.  483,  50  Week. 

Rep.   524,   87    L.   T.   N.    S.   29,   18 

Times  L.  R.  514 — 75. 
v.  Rex   (1904)   116  L.  T.  Jo.  314,  6  W. 

C.  C.  27 317. 

Ellis  v.  Cory  [1902]  1  K.  B.  (Eng.)  38,  71 

L.  J.  K.  B.  N.  S.  72,  50  Week.  Rep. 

131,  85  L.  T.  N.  S.  499,  18  Times 

L.  R.  28,  66  J.  P.  116,  6  W.  C.  C.  62 

— 203. 
v.i  Ellis   [1905)   1  K.  B.   (Eng.)   324,  74 

L.  J.  K.  B.  N.  S.  229,  53  Week.  Rep. 

311,  92  L.  T.  N.  S.  718,  21  Times- 

L.  R.  182 — 117. 
v.  Fairfield  Shipbuilding  &  Engineering 

Co.  [1913]  S.  C.  217,  [1913]  W.  C. 

6  Ins.  Rep.  88,  6  B.  W.  C.  C.  308, 
50  Scot.  L.  R.  137,  [1912]  2  Scot. 
L.  T.  485. — 90. 

v.  Knott  (1900)  2  W.  C.  C.  (Eng.)  116 

— 143. 
v.  Lochgelly  Iron  &  Coal  Co.  [1909]  S. 

C.  1278,  46  Scot.  L.  R.  960 177, 

Ellison  v.  Longden  (1901)   18  Times  L.  R_ 

(Eng.)    48 195,   209. 

Elvin  v.  Woodward  [1903]   1  K.  B.   (Eng.)- 

838,  72  L.  J.  K.  B.  N.  S.  468,  67  J.. 

P.  413,  51  Week.  Rep.  518,  88  L.  T^ 

N.  S.  671,  19  Times  L.  R.  410 

199. 
Emmerson  v.  Donkin  (1910)  4  B.  W.  C.  C.. 

(Eng.)  74 — 170. 
Employers'  Assur.  Corp.  v.  Industrial  Acci.. 

Commission  (1915)  —  Cal.  — ,  15E 

Pac.  423 267,  270. 

Employers'  Liability  Cases,  207  U.  S.  463,. 

52  L.  ed.  297,  28  Sup.  Ct.  Rep.  141. 

455,  458. 

Encking   v.    Simmons,    28    Wis.    272 — 377.. 
Englebretson  v.  Industrial  Acci.  Commission 

(1915)  —  Cal.  — ,  151  Pac.  421 

267,  268,  411. 
Ennis  v.  M.  A.  Hanna  Dock  Co.  148  Wis. 

655,  134  N.  W.  1051 369. 

Erie  R.  Co.  v.  New  York,  233  U.  S.  671,  58 

L.  ed.  1149,  52  L.R.A.(N.S.)  266,  34 

Sup.  Ct.  Rep.  756,  Ann.  Cas.  1915D,. 

138 453. 

v.  Williams,  233  U.  S.  685,  58  L.  edl. 

1155,  51  L.R.A.(N.S.)  1097,  34  Sup. 

Ct.  Rep.  761 406. 

Ethier's  Case  (1914)  217  Mass.  511,  105  N.. 

E.  376,  5  N.  C.  C.  A.  611 — 257. 
Euman  v.  Dalziel  [1913]  S.  C.  246,  50  Scot.. 

L.  R.  143,  (1913)  W.  C.  &  Ins.  Rep.. 

49,  6  B.  W.  C.  C.  900 — 31,   133,, 

292. 
Evans  v.  Astley   [1911]  A.  C.   (Eng.)   674r 

80  L.  J.  K.  B.  N.  S.  1177,  105  L. 

T.  N.  S.  385,  27  Times  L.  R.  557, 

4  B.  W.  C.  C.  319 — 50. 
v.  Barrow  Haematite  Steel  Co.    (1914) 

7  B.  W.   C.   C.    (Eng.)    681 — 145, 
178. 

v.  Cook  [1905]  1  K.  B.  (Eng.)  53,  74  L. 

J.  K.  B.  N.  S.  95,  92  L.  T.  N.  S. 

43,  21   Times  L.  R.  42,  56  Week. 

Rep.  81 — 81,  212. 
v.  Cory  Bros.  [1912]  W.  C.  Rep.  (Eng.)y 

199,  5  B.  W.  C.  C.  272 137. 


502 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Evans  v.  Dodd    [1912]   W.  C.  Rep.    (Eng.) 

149,  5  B.  W.  C.   C.  305 35,  290. 

v.  Gwauncaegurwen  Colliery  Co.  [1912] 

W.  C.  Rep.   (Eng.)   213,  106  L.  T. 

N.  S.  613,  5  B.  W.  C.  C.  441 — 183. 
v.  Holloway    (1914)     7    B.    W.    C.    C. 

(Eng.)    248,    [1914]    W.   C.   &   Ins. 

Rep.  75 45. 

v.  Penwyllt    Dinas     Silica    Brick    Co. 

(1901)   18  Times  L.  R.    (Eng.)   58 

118. 

v.  Wilson   (1907;  C.  C.)   124  L.  T.  Jo. 

(Eng.)    201,  1  B.  W.  C.  C.  148 — 

206. 
Everitt  v.  Eastaff  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)  164,  6  B.  W.  C.  C.  184 46. 

Ewald  v.  Chicago  &  N.  W.  R.  Co.  70  Wis. 

420,  5  Am.  St.  Rep.  178,  36  N.  W. 

12 328. 

Eydmann     v.     Premier     Accumulator     Co. 

[1915]   W.  C.  &  Ins.  Rep.    (Eng.) 

82,  8  B.  W.  C.  C.  121 88,  91. 

Eyre  v.  Houghton  Main  Colliery  Co.  [1910] 

1  K.  B.  (Eng.)  695,  79  L.  J.  K.  B. 

N.  S.  698,  102  L.  T.  N.  S.  385,  26 

Times  L.  R.  302,  54  Sol.  Jo.  304,  3 

B.  W.  C.  C.  250 148. 


Fabro  v.  Superior  Coal  Co.   (1914)  188  111. 

App.  203 — 220. 
Fagan  v.  Murdoch   (1899)   1  Sc.  Sess.  Cas. 

5th    series,    1179,    36    Scot.    L.    R. 

921,  7  Scot.  L.  T.  113 — 135. 
Fairchild  v.  Pennsylvania  R.  Co.  (1915)  — 

App.  Div.  — ,  155  N.  Y.  Supp.  751 

266. 

Faircloth  v.  Waring  &  Gillow  (1906;  C.  C.) 

8  W.  C.  C.   (Eng.)  99 — 154. 
Falconer  v.  London  &  G.  Engineering  Co. 

(1901)   3  Sc.  Sess.  Cas.  5th  series, 

564,  38  Scot.  L.  R.  381,  8  Scot.  L. 

T.  430 47. 

Farmer  v.  Stafford   (1911)   4  B.  W.  C.  C. 

(Eng.)  223 — 67. 
Federal  Gold  Mine  v.  Ennor    (1910;   H.  C. 

Austr.)  13  C.  L.  R.  (Austr.)  276 — 

33,   180,   294. 
Feinmen  v.  Albert  Mfg.  Co.  (1915)  —  App. 

Div.  — ,  155  N.  Y.  Supp.  909 — 258. 
Feldman  v.  Braunstein   (1915)   —  N.  J.  L. 

— ,  93  Atl.  679 — 259,  388. 
Fenn  v.  Miller  [1900]   1  Q.  B.   (Eng.)   788, 

69  L.  J.  Q.  B.  N.  S.  439,  82  L.  T. 

N.  S.  284,  16  Times  L.  R.  265,  2 

W.  C.  C.  55,  64  J.  P.  356,  48  Week. 

Rep.  369 — 193,  194. 
Fennah  v.  Midland  G.  W.  R.  Co.  (1911)  45 

Ir.  Law  Times,  192,  4  B.  W.  C.  C. 

440 34,  294. 

Fenton  v.  J.  Thorley  &  Co.   [1903]  A.  C. 

443,  72  L.  J.  K.  B.  N.  S.  787,  52 

Week.  Rep.  81,  89  L.  T.  N.  S.  314, 

19  Times  L.  R.  684,  5  W.  C.  C.  1 — 

29-32,  227,  229,  277,  280,  286,  298, 

302,  303,  [13]  477. 
Ferguson  v.  Barclay  Sons  &  Coy  (1902)   5 

Sc.   Sess.   Cas.   5th   series,   105,   40 

Scot.  L.  R.  58,  10  Scot.  L.  T.  350 

— 195,  201. 


Ferguson  v.  Brick  &  Supplies    (1914;   Al- 
berta) 7  B.  W.  C.  C.  1054 45,  82. 

v.  Green  [1901]  1  K.  B.   (Eng.)  25,  70 

L.  J.  K.  B.  N.  S.  21,  64  J.  P.  819, 

49  Week.  Rep.  105,  83  L.  T.  N.  S. 

461,  17  Times  L.  R.  41 — 199. 
Ferrier  v.  Gourley  Bros.  &  Co.  (1902)  4  Sc. 

Sess.  Cas.  5th  series,  711,  39  Scot. 

L.  R.  453,  9  Scot.  L.  T.  517 — 161, 

169. 
Ferriter  v.  Port  of  London  Authority  [1913] 

W.   C.  &  Ins.  Rep.    (Eng.)    455,  6 

B.  W.  C.  C.  732 — 73. 
Field  v.  Longden  [1902]  1  K.  B.  (Eng.)  47, 

71  L.  J.  K.  B.  N.  S.  120,  66  J.  P. 

291,  50  Week.  Rep.  212,  85  L.  T. 

N.  S.  571,  18  Times  L.  R.  65 27, 

79. 
Fife  Coal  Co.  v.  Davidson  [1906-07]   S.  C. 

(Scot.)  90 — 186. 
v.  Lindsay  [1908]  S.  C.  431,  45  Scot.  L. 

R.  317,  1  B.  W.  C.  C.  117 — 186. 
v.  Wallace  [1909]  S.  C.  683,  46  Scot.  L. 

R.  727,  2  B.  W.  C.  C.  264 125. 

Filer  &  S.  Co.,  Re  (1911)  146  Wis.  629,  132 

N.  W.  584 — 413. 
Finlay  v.   Tullamore   Union    (1914)    48  Ir. 

Law    Times,    110,    7    B.    W.    C.    C. 

973 35,  290. 

Finlayson  v.  Clinton  (1914)   7  B.  W.  C.  C. 

(Eng.)    710 182. 

Finnie  v.  Duncan  (1904)  7  Sc.  Sess.  Cas.  5th 

series  (Scot.)  254— -161. 
First  Nat.  Bank  v.  Industrial  Commission 

(1915)   —  Wis.  — ,  154  N.  W.  847 

243,   266,   268. 

Fisher's  Case  (1915)  220  Mass.  581,  108  N. 

E.  361 — 230,  267,  294. 
Fithian  v.  St.  Louis  &  S.  F.  R.  Co.  (C.  C.) 

188    Fed.    842 456.   " 

Fitzgerald  v.  Clarke  (1908)   99  L.  T.  N.  S. 

101,  1  B.  W.  C.  C.  197 40,  41,  47, 

312,  [13]  477,  [23]  487. 
v.  Lozier    Motor    Co.    (1915)    —   Mich. 

— ,  154  X.  W.  67 — 242,  268. 
Fitzpatrick  v.  Hindley  Field  Colliery  Co.  3 

W.  C.  C.  37 — 329. 
v.  Hindley  Field  Colliery  Co.  [1901]  4 

W.   C.   C.    (Eng.)    7 61,   332. 

Fleet  v.  Johnson  (1913)  W.  C.  &  Ins.  Rep. 

(Eng.)    149,   29   Times   L.   R.   207, 

57  Sol.  Jo.  226,  6  B.  W.  C.  C.  60 

71,  133,  292. 

Fleming  v.  Lochgelly  Iron  &  Coal  Co.  (1902) 

4    Sc.    Sess.    Cas.    5th   series,    890, 

39  Scot.  L.  R.  684,  10  Scot.  L.  T. 

114 — 149,   157. 
Fletcher  v.  Hawley  (1905)   21  Times  L.  R. 

(Eng.)   191 — 200. 
v.  London  United  Tramways  [1902]  "2 

K.  B.    (Eng.)    269,  71  L.  J.  K.  B. 

N.  S.  653,  66  J.  P.  596,  50  Week. 

Rep.   597,  86   L.   T.  N.   S.   700,  18 

Times  L.  R.  639 200. 

v.  The   Dutchess    [1911]    A.  C.    (Eng.) 

671,  81  L.  J.  K.  B.  N.  S.  33,  55  Sol. 

Jo.  598,  4  B.  W.  C.  C.  317,  105  L. 

T.  N.  S.  121 66,  335. 

Floccher  v.   Fidelity   &   D.   Co.    (1915)    — 

Mass.    — ,    108    N.    E.    1032 — 258, 

259,  388. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


503 


Flowers  v.  Chambers  [1899]  2  Q.  B.  (Eng.) 
142,  1  W.  C.  C.  51 203,  204. 

Fogarty  v.  Wallis  [1903]  2  I.  R.  (Ir.)  522 
— 207. 

Follis  v.  Schaake  Mach.  Works   (1908)   13 

B.  C.  471,  1  B.  W.  C.  C.  442 125. 

Ford  v.  Gaiety  Theatre  [1914]  W.  C.  &  Ins. 

Rep.  (Eng.)  53,  7  B.  W.  C.  C.  197 

87. 

v.  Oakdale  Colliery  Co.  (1915)  8  B.  W. 

C.  C.  (Eng.)  127 122. 

v.  Wren    (1903)    115  L.  T.  Jo.    (Eng.) 

357,  5  W.  C.  C.  48 74. 

Forrest  v.  Roper  Furniture  Co.  (1915)  267 

111.  331,  108  N.  E.  328 224. 

Forrester  v.  M'Callum    (1901)   3   Sc.   Sess. 

Cas.  5th  series,  650,  38  Scot.  L.  R. 

448,  8  Scot.  L.  T.  486 134. 

Foth  v.  Macomber  &  W.  Rope  Co.  (1915)  — 

Wis.  — ,  154  N.  W.  369 246. 

Fowler  v.  Hughes   (1903)    5  Sc.  Sess.  Cas. 

5th  series,  394,  40  Scot.  L.  R.  321, 

10  Scot.  L.  T.  583 73. 

Fox  v.  Barrow  Hematite  Steel  Co.   (1915) 

84  L.  J.  K.  B.  N.   S.    (Eng.)    1327 

84,  91. 

v.  Battersea    Borough    Council    (1911) 

4   B.  W.   C.   C.    (Eng.)    261 — 142, 

185. 
Francis    v.    Turner   Bros.    [1900]    1    Q.    B. 

(Eng.)  478,  69  L.  J.  Q.  B.  N.  S.  182, 

64  J.  P.  53,  48  Week.  Rep.  228,  81 

L.  T.  N.  S.  770,  16  Times  L.  R.  105, 

2  W.  C.  C.  61 — 195,  200,  209,  211. 
Fraser  v.  Great  North  of  Scotland  R.  Co. 

(1901)  3  Sc.  Sess.  Cas.  5th  series, 

908,  38  Scot.  L.  R.  653,  9  Scot.  L. 

T.  96 85,  144. 

Frazer  v.  Riddell  [1914]  S.  C.  125,  2  Scot. 

L.    T.    377,    51    Scot.    L.    R.    110, 

[1914]  W.  C.  &  Ins.  Rep.  125,  7  B. 

W.  C.  C.  841 63,  352. 

Fredenburg  v.  Empire  United  R.  Co.  (1915) 

168  App.  Div.  618,  154  N.  Y.  Supp. 

351 257,  261. 

Fred  E.  Sanders,  The   (1913)  208  Fed.  724, 

4  N.  C.  C.  A.  891,  212  Fed.  545,  5 

N.  C.  C.  A.  97 462. 

Freeland  v.  Macfarlane   (1900)   2  Sc.  Sess. 

Cas.  5th  series,  832,  37  Scot.  L.  R. 

599,   7   Scot.   L.   T.  456 72,   144, 

169. 
Freeman  v.  Mercantile  Mut.  Acci.  Asso.  156 

Mass.  351,  17  L.R.A.  753,  30  N.  E. 

3013 — 280. 
French  v.  Cloverleaf  Coal  Min.  Co.   (1914) 

190  111.  App.  400 220. 

v.  Underwood    (1903)    19  Times  L.  R. 

(Eng.)   416 121. 

Frid  v.  Fenton  (1900)  82  L.  T.  N.  S.  (Eng.) 

193,  69  L.  J.  Q.  B.  N.  S.  437,  16 

Times  L.  R.  267 — 198. 
Friscia  v.  Drake  Bros.  Co.  (1915)  167  App. 

Div.  496,  153   N.  Y.  Supp.  392 

251,  253. 
Frith    v.   The    Louisiana    [1912]    2   K.   B. 

(Eng).  155,  81   L.  J.  K.   B.  N.  S. 

701,   [1912]   W.  C.  Rep.  285,  5  B. 

W.  C.  C.  410,  106  L.  T.  N.  S.  667, 

[1912]  W.  N.  98,  28  Times  L.  R. 

331 — 63,  351. 


Fry  v.  Cheltenham  Corp.  (1911)  81  L.  J.  K. 

B.  N.  S.  (Eng.)  41,  105  L.  T.  N.  S. 

495,  28  Times  L.  R.  16,  76  J.  P. 

89,  56   Sol.   Jo.  33,   [1911]    W.  N. 

199,   [1912]   W.  C.  Rep.  105,  5  B. 

W.  C.  C.  162,  10  L.  G.  R.  1 — 84,  89. 
Fulford  v.  Northfleet  Coal  &  Ballast  Co.  1 

B.  W.  C.  C.  222 30,  35,  302,  303. 

Fulgham  v.  Midland  Valley  R.  Co.   (C.  C.) 

167  Fed.  660 455. 

Fuller  v.  Chicopee  Mfg.  Co.  16  Gray,  46 — 

280. 
Fullick   v.   Evans    (1901)    84    L.   T.   N.    S. 

(Eng.)  413,  17  Times  L.  R.  346 — 

200. 
Fumiciello's  Case  (1914)  219  Mass.  488,  107 

N.  E.  349 — 235,  331. 
Furness  v.  Bennett   (1910)   3  B.  W.  C.  C. 

(Eng.)   195 148. 

Furniss  v.  Gartside    (1909)    3  B.  W.  C.  C. 

(Eng.)  411 — 56i 
Furnivall   v.   Johnson's   Iron   &   Steel   Co. 

(1911)  5  B.  W.  C.  C.  (Eng.)  43 

67,  71. 


Gallagher's  Case  (1914)  219  Mass.  140,  106 

N.  E.  558 250,  370. 

Gallant  v.  The  Gabir  [1913]  W.  C.  &  Ins. 

Rep.    (Eng.)    116,  108  L.  T.  N.  S. 

50,  29  Times  L.  R.  198,  57  Sol.  Jo. 

225,   12  Asp.  Mar.  L.  Cas.  284,  6 

B.  W.  C.  C.  9 50. 

Galvin  v.  Parker,  154  Mass.  346,  28  N.  E. 

244 364. 

Gane  v.  Norton  Hill  Colliery  Co.   [1909]  2 

K.  B.    (Eng.)    539,   78  L.  J.  K.  B. 

X.  S.  921,  100  L.  T.  N.  S.  979,  25 

Times  L.  R.  640,  2  B.  W.  C.  C.  42 

61,  237,  301,  319,  331,  332. 

Garcia     v.     Industrial     Acci.     Commission 

(1915)  —  Cal.  — ,  151  Pac.  741 — 

251. 
Gardner  v.  Cox  (1910)  3  B.  W.  C.  C.  (Eng.) 

245 — 183. 
Garnant     Anthracite     Collieries     v.     Rees 

[1912]    3    K.    B.     (Eng.)     372,    81 

L.  J.  K.  B.  N.  S.  1189,  107  L.  T. 

N.   S.  279,   5  B.  W.  C.  C.   694 — 

172. 
Garnick  v.  British  Columbia  Sugar  Ref.  Co. 

(1909)  14  B.  C.  251 357. 

Garrett  v.  Waddell   [1911]   S.  C.  1168,  48 

Scot.  L.  R.  937 — 110. 
Gatton  v.  Limerick  S.  S.  Co.  (1910)  44  Ir. 

Law    Times    141,    [1910]    2    I.   R. 

561 67. 

Gaynor  v.  Standard  Acci.  Ins.  Co.    (1914) 

217    Mass.    86,    104   N.    E.    339,   4 

N.  C.  C.  A.  502    (reported  in   full 

herein,  p.  363) — 247,  248,  365. 
Gaynor's    Case.      See    Gaynor   v.    Standard 

Acci.  Ins.  Co. 
Geary  v.  Dickson,  4  F.  (Scot.)  1143,  cited  in 

2  Mews'  Dig.  Supp.  1571 — 143. 
v.  Ginzler    [1913]    W.   C.   &   Ins.   Rep. 

(Eng.)    314,   108   L.   T.  N.  S.   286, 
6  B.  W.  C.  C.  72 — 62. 
Gellyceidrim  Colliery  Co.  v.  Rogers  (1909) 

3  B.  W.  C.  C.   (Eng.)   62 165. 


504 


TABLE  OF  CASES  REPORTED  AND  CITED. 


George  v.  Glasgow  Coal  Co.   [1909]   A.  C. 

(Eng.)  123,  78  L.  J.  P.  C.  N.  S.  47, 

99  L.  T.  N.  S.  782,  25  Times  L.  R. 

57,  [1909]  S.  C.  (H.  L.)  1,  46  Scot. 

L.   R.  28 76,  77,   356,  357. 

v.  Macdonald    (1901)    4   Sc.    Sess.   Cas. 

5th  series,  190,  39  Scot.  L.  R.  136, 

9  Scot.  L.  T.  267 — 201. 
George  W.  Helme  Co.  v.  Middlesex  Common 

Pleas    (1913)    84  N.  J.  L.  531,  87 

Atl.  72,  4  N.  C.  C.  A.  674 257. 

Giachas  v.  Cable  Co.   (1915)   190  111.  App. 

285 — 261. 
Giardelli  v.  London  Welch  S.  S.  Co.  (1914) 

7  B.  W.  C.  C.  (Eng.)  550 — 171. 
Gibb  v.  Dunlop  (1902)  4  Sc.  Sess.  Cas.  5th 

series,  971,  39  Scot.  L.  R.  750,  10 

Scot.  L.  T.  184 158. 

Gibson  v.  Wilson   (1901)    3   Sc.  Sess.  Cas. 
5th  series^  661,  36  Scot.  L.  R.  450, 

8  Scot.  L.  T.  497 — 51. 

v.  Wilson  (1899)  1  Sc.  Sess.  Cas.  5th 
series,  1017,  36  Scot.  L.  R.  777, 
7  Scot.  L.  T.  65 — 208. 

v.  Wishart  (1914:  H.  L.  Sc.)  30  Times 
L.  R.  540,  [1914]  W.  N.  232,  58 
Sol.  Jo.  592,  51  Scot.  L.  R.  516, 
83  L.  J.  P.  C.  N.  S.  321,  111  L.  T. 
N.  S.  466,  [1914]  S.  C.  (H.  L.)  53, 
[1914]  W.  C.  &  Ins.  Rep.  202,  7 

B.  W.   C.   C.   348 — 163,   166,   167. 
v.  Wormald  [1904]  2  K.  B.  (Eng.)  40, 

73  L.  J.  K.  B.  N.  S.  491,  68  J.  P. 

382,  52  Week.  Rep.  661,  91  L.  T.  N. 

S.  7,  20  Times  L.  R.  452 — 178. 
Gignac  v.  Studebaker  Corp.  (1915)  —  Mich. 

— ,  152  N.  W.  1037 — 243,  355. 
Gilbert  v.  Dutruit,  91  Wis.  661,  65  N.  W. 

511 — 377. 

v.  Fairweather   (1908;  C.  C.)   1  B.  W. 

C.  C.  (Eng.)  349 140. 

v.  The  Nizam   [1910]    2  K.  B.    (Eng.) 

555,  79  L.  J.  K.  B.  N.  S.  1172,  103 

L.  T.   N.   S.   163,  26   Times   L.   R. 

604,  3  B.  W.  C.  C.  455 — 69. 
Giles  v.  Belford  [1903]  1  K.  B.  (Eng.)  843, 

72  L.  J.  K.  B.  N.  S.  569,  51  Week. 

Rep.  692,  88  L.  T.  N.  S.   754,  67 

J.  P.  399,  19  Times  L.  R.  422 

157. 
Gill  v.  Aberdeen  Steam  Trawling  &  Fishing 

Co.  [1908]   S.  C.   (Scot)   328 — 105. 
v.  Fortescue  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)    471,   6    B.   W.    C.    C.    577 

— 74. 
Gillen  v.  Ocean  Acci.  &  G.  Corp.  (1913)  215 

Mass.  96,  102  N.  E.  346   (reported 

in  full  herein,  p.  371) — 260,  365, 

373,  379. 
Gillen's  Case.     See  Gillen  v.  Ocean  Acci.  & 

G.  Corp. 

Gilmore,  Ex  parte,  3  C.  B.  967 — 369. 
Gilmour  v.  Dorman  (1911)   105  L.  T.  N.  S. 

(Eng.)  54,  4  B.  W.  C.  C.  279 62, 

332. 
Gilroy  v.  Mackie  [1909]  S.  C.  466,  46  Scot. 

L.   R.   325,   2   B.  W.   C.   C.   269 — 

113,  117,  159,  374. 
Clancy  v.  Watson  (1915)  52  Scot.  L.  R.  279, 

[1915]  W.  C.  &  Ins.  Rep.  40,  8  B. 

W.  C.  C.  391 — 109. 


Glasgow  &  S.  W.  R.  Co.  v.  Laidlow  (1900) 

2  Sc.  Sess.  Cas.  5th  series,  708,  37 

Scot.  L.  R.  503,  7  Scot.  L.  T.  420 

— 75,  355. 
Glasgow  Coal  Co.  v.  Sneddon  (1905)   7  Sc. 

Sess.   Cas.   5th   series    (Scot.)    485 

— 79,  357. 
Gleissner  v.  Gross  (1915)  —  App.  Div.  — , 

155  N.  Y.  Supp.  946 — 218. 
Godbold  v.  London  County  Council   (1914) 

111   L.  T.  N.  S.    (Eng.)    691,  7  B. 

W.  C.  C.  409 — 184. 
Godden  v.  Cowlin    [1913]    1   K.  B.    (Eng.) 

590,  82  L.  J.  K.  B.  N.  S.  509,  108 

L.   T.  N.   S.   166,   29   Times  L.   R. 

255,  57  Sol.  Jo.  282,  [1913]  W.  N. 

37,  [1913]  W.  C.  &  Ins.  Rep.  330, 

6  B.  W.  C.  C.  154 — 157. 
Godwin  v.  Lord  Comrs.  of  Admiralty  [1913] 

A.  C.    (Eng.)    638,   82  L.  J.  K.  B. 

N.  S.  1126,  109  L.  T.  N.  S.  428,  29 

Times  L.  R.  774,  [1913]  W.  N.  267, 

6  B.  W.  C.  C.  788,  aff'g  Ct.  of  App. 
[1912]  2  K.  B.  26,  81  L.  J.  K.  B.  N. 
S.   532.   106   L.   T.   N.   S.    136,   28 
Times  L.  R.  229,  [1912]  W.  C.  Rep. 
49,  5  B.  W.  C.  C.  229 — 94,  128. 

Gcff  v.  Airds   (1912)   5  B.  W.  C.  C.   (Eng.) 

277 — 180. 
Colder  v.  Caledonian  R.  Co.    (1902)   5  Sc. 

Sess.   Cas.   5th   Series    (Scot.)    123 

— 34,   293. 
Goldstein  v.  Center  Iron  Works  (1915)  167 

App.    Div.    526,    153    X.    Y.    Supp. 

224 — 266. 
Gonyea  v.  Canadian  P.  R.  Co.   (1913)   7  B. 

W.  C.  C.  1029 — 58. 
v.  Canadian  P.  R.  Co.  (1913)  7  B.  W.  C. 

C.    (Sask.)    1041 — 58,  323. 
Goodall  v.  Kramer    (1910)    3_  B.  W.  C.  C. 

(Eng.)   315 170. 

Goodlet  v.  Caledonian  R.  Co.   (1902)   4  Sc. 

Sess.  Cas.  5th  Series,  986,  39  Scot. 

L.  R.  759,  10  Scot.  L.  T.  203 57. 

Goodsell    v.    The    Lloyds    [1914]    3    K.    B. 

(Eng.)    1001,  30  Times  L.  R.  622, 

83  L.  J.  K.  B.  N.  S.  1733,  7  B.  W. 

C.  C.  631 — 185. 
Gorman  v.  Gibson  [1909-10]  S.  C.  317,  4f 

Scot.   L.   R.   394 113. 

Gormley  v.  Brisbane  Tramways  Co.  (1909) 

Queensl.   St.  Rep.   329 — 139. 
Gorrell  v.  Battelle  (1914)  93  Kan.  370,  144 

Pac.  244 — 221,  255,  262,  380. 
Goslan  v.  Gillies  [1906-07]  S.  C.  (Scot.)  68 

— 45. 
Gossett  v.  Southern  R.  Co.  115  Tenn.  376, 

1    L.R.A.(N.S.)     97,    112    Am.    St. 

Rep.  846,  89   S.  W.  737 — 280. 
Gotobed  v.  Petchell  [1914]  2  K.  B.  (Eng.) 

36,  83  L.  J.  K.  B.  X.  S.  429,  110 

L.  T.  N.   S.   453,  30   Times  L.  R. 

253,  58  Sol.  Jo.  249,  [1914]  W.  N. 

33,  [1914]  W.  C.  &  Ins.  Rep.  115, 

7  B.  W.  C.  C.  109 — 173. 

Gough  v.  Crawshay  Bros.  [1908]  1  K.  B. 
(Eng.)  441,  77  L.  J.  K.  B.  N.  S. 
236,  98  L.  T.  N.  S.  327,  24  Times 
L.  R.  186,  1  B.  W.  C.  C.  374 — 151, 
159,  374. 


TABLE  OF.  CASES  REPORTED  AND  CITED. 


505 


Gould's  Case  (1913)  215  Mass.  480,  102  N. 

E.   693,   Ann.   Cas.    1914D,   372,   4 

N.  C.  C.  A.  60 215,  270-272,  308, 

442,  444. 
Gourlay    Bros.    v.    Sweeney    (1906)    8    Sc. 

Sess.   Cas.   5th   series    (Scot.)    965 

79. 

Gourley   v.   Murray    [1908]    S.   C.   769,   45 

Scot.  L.  R.  577,  1  B.  W.  C.  C.  335 

— 124. 
Graham  v.  Barr  [1913]  S.  C.  538,  50  Scot. 

L.  R.  391,  [1913]  W.  C.  &  Ins.  Rep.  I 

202,  6  B.  W.  C.  C.  412 — 61,  332. 
Grand  Rapids  &  I.  R.  Co.  v.  Osborn,  193  U. 

S.  17,  48  L.  ed.  598,  24  Sup.  Ct. 

Rep.  310 — 377. 
Granick  v.  British  Columbia  Sugar  Ref.  Co. 

(1909)    14  B.  C.   251 77. 

Grant  v.  Conroy  (1904;  C.  C.)   6  W.  C.  C. 

(Eng.)    153 — 173. 
v.  Glasgow  &  S.  W.  R.  Co.   [1908]   S. 

C.  (Scot.)  187 — 71. 
v.  Ward   (1904;    C.    C.)    7    W.    C.    C. 

(Eng.)  128 — 192. 
Gray  v.  Carroll  [1910]   S.  C.  700,  47  Scot. 

L.  R.  646,  3  B.  W.  C.  C.  572 190. 

v.  North  British  R.  Co.  (1914)  52  Scot. 

L.  R.  144,  8  B.  W.  C.  C.  373 — 101, 

361. 
v.  Reed    [1913]    W.    C.    &    Ins.    Rep. 

(Eng.)   127,  108  L.  T.  N.  S.  53,  6 

B.  W.  C.  C.  43 — 146,  148,  163,  171, 
380. 

v.  Shotts  Iron  Co.   [1912]    S.  C.  1267, 

49  Scot.  L.  R.  906,  6  B.  W.  C.  C. 

287 — 162. 
v.  Southend  Corp.  [1913]  W.  C.  &  Ins. 

Rep.    (Eng.)    393,   6   B.   W.   C.  C. 

932 — 178. 
Great  Fingall  v.  Sheehan   (1906)   3  Austr. 

L.  R.  176 — 73. 
Great  Northern  R.  Co.  v.  Dawson  [1905]  1 

K.  B.    (Eng.)    331,  74  L.  J.  K.  B. 

N.  S.  271,  53  Week.  Rep.  309,  92 

L.  T.  N.  S.  145,  21   Times  L.  R. 

193 — 160. 
v.  Whitehead    (1902)    18   Times  L.  R. 

(Eng.)    816 — 103,   362. 
Great  North  of  Scotland  R.  Co.  v.  Fraser 

(1900)   3  Sc.  Sess.  Cas.  5th  series, 

908,  38  Scot.  L.  R.  653,  9  Scot.  L. 

T.  96 72. 

Great    Western    Power    Co.    v.    Pillsbury 

(1915)   —  Cal.  — ,  149   Pac.  35 

243,    244,    269,   270,   355-357,   411. 
v.  Pillsbury,  —  Cal.  — ,  151  Pac.  1136 

(reported  in  full  herein,  D.  281) 

230,   292. 
Greaves  v.  Mulliners  (1901;  C.  C.)  3  W.  C. 

C.  (Eng.)  189 — 156. 

Green  v.  Britten  [1904]  1  K.  B.  (Eng.)  350, 
73  L.  J.  K.  B.  N.  S.  126,  68  J.  P. 
139,  52  Week.  Rep.  198,  89  L.  T. 
N.  S.  713,  20  Times  L.  R.  116,  6 
W.  C.  C.  82 — 206. 

v.  Cammell  [1913]  3  K.  B.  (Eng.)  665, 
82  L.  J.  K.  B.  N.  S.  1230,  109  L.  T. 
N.  S.  202,  29  Times  L.  R.  703, 
[1913]  W.  N.  259,  6  B.  W.  C.  C. 
735 167,  170. 


Greene  v.  Shaw  [1912]  2  I.  R.  430,  [1912] 

W.  C.  Rep.  25,  46  Ir.  Law  Times, 

18,  5  B.  W.  C.  C.  573 42,  48,  314. 

Greenhill  v.  Caledonian  R.  Co.  (1900)  2  Sc. 

Sess.  Cas.  5th  series,  736,  37  Scot. 

L.  R.  524,  7  Scot.  L.  T.  458 98. 

v.  The    Daily    Record     (1909,    Ct.    of 

Sess.)  46  Scot.  L.  R.  483 — 108. 
Greenwood  v.  Greenwood   (1907;  Div.  Ct.) 

97  L.  T.  N.  S.  (Eng.)  771,  24  Times 

L.  R.  24,  1  B.  W.  C.  C.  247 — 81. 
v.  Hall    [1915]    W.  N.    (Eng.)    244,  31 

Times  L.  R.  476,  59  Sol.  Jo.  577 — 

155. 
Greer  v.  Thompson  [1912]  W.  C.  Rep.  272, 

46  Ir.  Law  Times,  89,  5  B.  W.  C.  C. 

586 49. 

Gregutis   v.   Waclark  Wire  Works    (1914) 
-  N.   J.   L.  — ,  91   Atl.  98 — 214, 

221,  222,  251. 
v.  Waclark  Wire  Works   (1914)   86  N. 

J.  L.  610,  92  Atl.  354, — 214,  221, 

222. 
Grewar  v.  Caledonian  R.  Co.   (1902)   4  Sc. 

Sess.  Cas.  5th  series,  895,  39  Scot. 

L.  R.  687,  10  Scot.  L.  T.  Ill — 156, 

157 
Griffin    v.    Houlder   Line    [1904]    1    K.   B. 

(Eng.)    510,  73   L.  J.  K.   B.  N.   S. 

202,  63  J.  P.  213,  52  Week.  Rep. 

323,  90  L.  T.  N.  S.  142,  20  Times 

L.  R.  255,  6  W.  C.  C.  107 — 204. 
Griffiths  v.  Atkinson   (1912)    106  L.  T.  N. 

S.   (Eng.)   852,   [1912]  W.  C.  Rep. 

277,  5  B.  W.  C.  C.  345 84,  92. 

v.  Gilbertson  [1915]  W.  N.  (Eng.)  253, 

84  L.  J.  K.  B.  N.  S..  1312 — 153,  154. 
v.  North's  Nav.  Collieries   (1911)   5  B. 

W.   C.   C.    (Eng.)    21 40. 

v.  Warren   (1904;  C.  C.)   116  L.  T.  Jo. 

(Eng.)  575,  6  W.  C.  C.  65 121. 

v.  Wynnstay  Collieries  Co.  (1909)  2  B. 

W.  C.  C.   (Eng.)   450 180. 

Griga  v.  The  Harelda  (1910)  3  B.  W.  C.  C. 

(Eng.)  116 — 169. 
Griggs  v.  The  Gamecock  [1913]  W.  C.  &  Ins. 

Rep.   (Eng.)   122,  6  B.  W.  C.  C.  15 

— 55. 
Grime  v.  Fletcher   [1915]   1  K.  B.    (Eng.) 

734,  31  Times  L.  R.  158,  50  L.  J. 

55,  84  L.  J.  K.  B.  N.  S.  847,  8  B.  W. 

C.  C.  69,  [1915]  W.  N.  43,  59  Sol. 

Jo.  233 — 84,  88,  89,  133,  339. 
Gross  v.  Marshall  Butters  Lumber  Co.  Mich. 

I.  A.  Board,  cited  in  1  Bradbury's 

Workmen's    Compensation,    367 

298. 
Grove    v.    Michigan    Paper   Co.    (1915)    — 

Mich.  — ,  151  N.  W.  554 266. 

Groves  v.  Burroughes  (1911)  4  B.  W.  C.  C. 

(Eng.)  185 34,  293. 

Grybowski  v.  Erie  R.  Co.  (1915)  —  N.  J.  L. 

— ,  95  Atl.  764 464. 

Guerrieri    v.    Industrial    Ins.    Commission 

(1915)  84  Wash.  266,  146  Pac.  608, 

8  N.  C.  C.  A.  440 219. 

Guest  v.   Winsper    (1911)    4   B.   W.   C.   C. 

(Eng.)  289 — 146. 
Guest,    Keen    &    Nettlefolds    v.    Winsper 

(1911)  4  B.  W.  C.  C.  (Eng.)  289 

380. 


506 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Guilfoyle  v.  Fennessy  [1913]  W.  C.  &  Ins. 
Rep.  228,  47  Ir.  Law  Times,  19,  6 

B.  W.  C.  C.  453 — 51. 

Gulf,  C.  &  S.  F.  R.  Co.  v.  Hefley,  158  U.  S. 
98,  39  L.  ed.  910,  15  Sup.  Ct.  Rep. 

802 452. 

v.  McGinnis,  228  U.  S.  173,  57  L.  ed. 
785,  33  Sup.  Ct.  Rep.  426,  3  N.  C. 

C.  A.  806 456. 

Guthrie  v.  Boase  Spinning  Co.  (1901)  3  Sc. 
Sess.  Cas.  5th  series,  769,  38  Scot. 
L.  R.  483 — 77,  357. 


H 


Haddock  v.  Humphrey  [1900]  1  Q.  B.  (Eng.) 

609,  82  L.  T.  N.  S.  72,  69  L.  J.  Q. 

B.  N.  S.  327,  16  Times  L.  R.  143, 

64  J.  P.  86,  48  Week.  Rep.  292 — 

203. 
v.  Humphreys  (1899)  1  W.  C.  C.  (Eng.) 

117 — 183. 
Hains  v.  Corbet  (1912)  5  B.  W.  C.  C.  (Eng.) 

372 159   374 

Hainsborough    v.  'fialli    Bros.     (1902)     18 

Times  L.  R.  (Eng.)  21 209. 

Haley  v.  United  Collieries  [1907]  S.  C.  216, 

44  Scot.  L.  R.  584 41. 

v.  United     Collieries     (1906-7)     S.     C. 

(Scot.)  214 — 51. 
Hall  v.  Snowden  [1899]  2  Q.  B.  (Eng.)  136, 

1  W.  C.  C.  73 — 203. 
v.  Snowdon  [1899]  1  Q.  B.   (Eng.)  593, 

68  L.  J.  Q.  B.  N.  S.  363,  80  L.  T. 

N.  S.  256,  15  Times  L.  R.  244,  47 

Week.  Rep.  322,  1  W.  C.  C.  114 — 

183. 
Halls   v.    Furness    (1909)    3    B.   W.    C.    C. 

(Eng.)   72 184. 

Halstead  v.  Thomson  (1901)  3  Sc.  Sess.  Cas. 

5th  series,  668,  38  Scot.  L.  R.  473 

197,  198. 

Halvorsen  v.  Salvesen  (1911)  49  Scot.  L.  R. 

27 — 66. 
Hamilton,  The,  207  U.  S.  398,  52  L.  ed.  264, 

28  Sup.  Ct.  Rep.  133 439,  448. 

Hammill  v.  Pennsylvania  R.  Co.  (1915)   — 

N.  J.  L.  — ,  94  Atl.  313 — 249,  262, 

434,  463. 
Hampton  v.  St.  Louis,  I.  M.  &  S.  R.  Co. 

227   U.   S.   456,   57   L.   ed.   596,   33 

Sup.  Ct.  Rep.  263 453. 

Hancock   v.   British   Westinghouse   Electric 

Co.    (1910)    3   B.  W.   C.  C.    (Eng.) 

210 — 88. 
Handford  v.  Clark    [1907]   2  K.  B.    (Eng.) 

409,  76  L.  J.  K.  B.  N.  S.  958,  97 

L.  T.  N.  S.  124,  9  W.  C.  C.  87 

210. 
Hanley  v.  Niddrie  &  B.  Coal  Co.  [1909-10] 

S.  C.   (Scot.)   875 — 186. 
Hanlin  v.  Melrose    (1899)    1  Sc.  Sess.  Cas. 

5th  series,  1012,  36  Scot.  L.  R.  814, 

7  Scot.  L.  T.  67 — 125. 
Hanlon  v.   North  City  Mill.  Co.    (1903)    2 

I.  R.  (Ir.)   163 — 205. 
Hanson  v.  Great  Central  R.  Co.    (1901;   C. 

C.)  3  W.  C.  C.  (Eng.)  152 213. 

Hapelman  v.  Poole   (1908)   25  Times  L.  R. 

(Eng.)   155,  2  B.  W.  C.  C.  48 — 56. 


Harbaugh  v.  Costello,  184  111.  110,  75  Am. 

St.  Rep.  147,  56  N.  E.  363 459. 

Harding  v.  Brynadu  Colliery  Co.   [1911]   2 

K.  B.    (Eng.)    747,  80  L.  J.   K.  B. 

N.  S.  1052,  105  L.  T.  N.  S.  55,  27 

Times  L.  R.  500,  55  Sol.  Jo.  599, 

4  B.  W.  C.  C.  269 — 54,  78. 
v.  Royal  Mail  Steam  Packet  Co.  (1911) 

4  B.  W.  C.  C.  (Eng.)   59 — 161. 
Hardy  v.  Moss   (1904;  C.  C.)  116  L.  T.  Jo. 

(Eng.)    201,  6  W.  C.  C.   68 — 198, 

212,  213. 
Hargreave  v.  Haughhead  Coal  Co.  [1912]  A. 

C.  (Eng.)  319,  [1912]  S.  C.  (H.  L.) 

70,  81  L.  J.  P.  C.  N.  S.  167,  106 

L.  T.  N.  S.  468,  [1912]  W.  C.  Rep. 

275,   [1912]   W.  N.  79,  56  Sol.  Jo. 

379,  49   Scot.  L.  R.  474,  5  B.  W. 

C.  C.  445 — 138. 
Harland  v.  Radcliffe  (1909)  43  Ir.  L.  T.  166, 

2  B.  W.  C.  C.  374 163. 

Harley  v.  Walsall  Wood  Colliery  Co.  [1915] 

W.  C.  &  Ins.  Rep.    (Eng.)   9,  8  B. 

W.  C.  C.  86 — 72. 
Harlock  v.  Coquet  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)   75,  7  B.  W.  C.  C.  88 — 179. 
Harrington  v.  Smith,  28  Wis.  43 — 377. 
Harris  v.  Ford  (1909)  28  New  Zealand  L.  R. 

426 — 72. 
v.  Hobart  Iron   Co.    (1914)    127   Minn. 

399,  149  N.  W.  662,  7  N.  C.  C.  A. 

44 — 221,  222. 
Harrison  v.  Dowling  (1915)  31  Times  L.  R. 

(Eng.)  486 161. 

v.  Ford    (1915)    8  B.  W.  C.  C.    (Eng.) 

429 141. 

v.  Oceanic  Steam  Nav.  Co.  [1907]  2  K. 

B.  (Eng.)  420,  note,  97  L.  T.  N.  S. 
466,  note 210. 

v.  Whittaker    (1899)    16    Times   L.   R. 

(Eng.)  108,  64  J.  P.  54 — 58. 
Hartley  v.  Quick  [1905]  1  K.  B.  (Eng.)  359, 

74  L.  J.  K.  B.  N.  S.  257,  92  L.  T. 

N.  S.  191,  21  Times  L.  R.  207 — 

197. 
Hartnett  v.  Thomas  J.  Gteen  Co.  (1915)  - 

N.  Y.  — ,  110  N.  E.  170 — 269. 
Hartshorne  v.  Coppice  Colliery  Co.    (1912) 

106  L.  T.  N.  S.  (Eng.)  609,  5  B.  W. 

C.  C.  358,   [1912]   W.  C.  Rep.  255 
184. 

Harvey  v.  North  Eastern  Marine  Engineer- 
ing Co.    (1902;   C.  C.)    5  W.  C.  C. 
(Eng.)  30,  113  L.  T.  Jo.  499 — 136. 
v.  Texas  &  P.  R.  Co.  92  C.  C.  A.  237, 
166  Fed.  385 328. 

Harwood,  Re,  [1901]  2  K.  B.  (Eng.)  304,  70 
L.  J.  K.  B.  N.  S.  746,  84  L.  T.  N. 
S.  857 — 183. 

v.  Wyken  Colliery  Co.  [1913]  2  K.  B. 
(Eng.)  158,  82  L.  J.  K.  B.  N.  S. 
414,  108  L.  T.  N.  S.  283,  29  Times 
L.  R.  290,  57  Sol.  Jo.  300,  [1913] 
W.  C.  &  Ins.  Rep.  317,  [1913]  W. 

N.  53,  6  B.  W.  C.  C.  225 31,  137, 

294. 

Hathaway  v.  Argus  Printing  Co.   [1901]  1 

K.  B.  (Eng.)  96 — 158. 

j  Havey  v.  Erie  R.  Co.  (1915)  —  N.  J.  L.  — , 
95  Atl.  124 — 246,  248,  252,  253. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


507 


Haward  v.  Rowsell    [1914]    W.   C.   &   Ins. 

Rep.  (Eng.)  314,  7  B.  W.  C.  C.  552 

— 70,  87,  91. 
Hawkes  v.  Broadwalk  Shoe  Co.  207  Mass. 

117,  44  L.R.A.(N.S.)  1123,  92  N.  E. 

1017 — 320. 
v.  Coles   (1910)    3  B.  W.  C.  C.    (Eng.) 

163 74,  140,  388. 

Hawkins  v.  Bleakley    (1914)    220  Fed.  378 

401,  411,  413,  427. 

v.  Powells     Tillery     Steam     Coal    Co. 

[1911]    1  K.  B.    (Eng.)    988,  80  L. 

J.  K.  B.  N.  S.  769,  104  L.  T.  N.  S. 

365,  27  Times  L.  R.  282,  55  Sol.  Jo. 

329,   4   B.   W.   C.   C.   178 33,   39, 

294,  301. 
Hayden  v.  Dick  (1902)  5  Sc.  Sess.  Cas.  5th 

series,   150,  40   Scot.  L.  R.  95,  10 

Scot.  L.  T.  380 119. 

Hayes  v.  Thompson    [1913]   W.   C.  &   Ins. 

Rep.  (Eng.)  161,  6  B.  W.  C.  C.  130 

97. 

Haylett  v.  Vigor  [1908]  2  K.  B.  (Eng.)  837, 

77  L.  J.  K.  B.  N.  S.  1132,  24  Times 

L.  R.  885,  72  Sol.  Jo.  741,  99  L.  T. 

N.  S.  74 109. 

Hay's  Wharf  v.  Brown  (1909)  3  B.  W.  C.  C. 

(Eng.)  84 — 141,  387,  389. 
Hayward  v.  Westleigh  Colliery  Co.   [1915] 

A.  C.  (Eng.)  540,  84  L.  J.  K.  B.  N. 

S.   61,   112  L.   T.   N.    S.    1001,   31 

Times  L.  R.  215,  8  B.  W.  C.  C.  278, 

[1915]   W.  N.  67,  59  Sol.  Jo.  269, 

rev'g  7  B.  W.  C.  C.  53,  [1914]  W. 

C.  &  Ins.  Rep.  21 71,  84,  88. 

Healy  v.  Galloway,  41  Ir.  Law  Times,  5 — 

92,  93. 
v.  Macgregor    (1900)    2   Sc.   Sess.  Cas. 

5th  series,  634,  37  Scot.  L.  R.  454, 

7  Scot.  L.  T.  402 — 204. 
Healy  Case.    See  Healy  v.  Galloway. 
Heileman  Brewing  Co.  v.  Schultz  (1915)  — 

Wis.  — ,  152  N.  W.  446 243,  269, 

276. 
v.  Shaw   (1915)  —  Wis.  — ,  154  N.  W. 

631 243. 

Helmke  v.  Thilmany,  107  Wis.  216,  83  N. 

W.  360,  8  Am.  Neg.  Rep.  172 328. 

Henderson  v.   Glasgow    (1900)    2   Sc.   Sess. 

Cas.  5th  series,  127,  37  Scot.  L.  R. 

857,  8  Scot.  L.  T.  118 — 81,  201. 
Hendricks  v.  Seeman   (1915)   —  App.  Div. 

— ,  155  N.  Y.  Supp.  638 218,  234, 

252. 
Hendrickson  v.  Public  Service  R.  Co.  (1915) 

-  N.  J.  L.  — ,  94  Atl.  402 271. 

Hendry  v.  Caledonian  R.  Co.   (1906-07)    S. 

C.  (Scot.)  732 47. 

v.  United  Collieries   [1910]    S.  C.  709, 

47  Scot.  L.  R.  635,  3  B.  W.  C.  C. 

567 — 51. 
Henneberry  v.   Doyle    [1912]    2   I.  R.   529, 

[1912]  W.  C.  Rep.  145,  46  Ir.  Law 

Times,  70,  5  B.  W.  C.  C.  580 45. 

Hennessey  v.  McCabe  [1900]  1  Q.  B.  (Eng.) 

491,  2  W.  C.  C.  80 207. 

Henricksen  v.  The  Swanhilda   (1911)   4  B. 

W.  C.  C.  (Eng.)  233 — 190. 


Hensey  v.  White  [1900]  1  Q.  B.  481,  69  L. 

J.  Q.  B.  N.  S.  188,  63  J.  P.  804,  48 

Week.  Rep.  257,  81  L.  T.  N.  S.  767, 

16  Times  L.  R.  64,  2  W.  C.  C.  1 

30,  32,  33,  294,  298. 
Henshaw  v.  Fielding   (1914)   7  B.  W.  C.  C. 

(Eng.)   650 — 171. 
Herbert  v.  Fox   [1915]  2  K.  B.   (Eng.)   81, 

84   L.  J.  K.  B.   N.   S.   670,    [1914] 

W.  C.  &  Ins.  Rep.  154,  [1914]   W. 

N.  44,  59  Sol.  Jo.  249,  8  B.  W.  C. 

C.  94 — 55. 
Herd  v.  Summers    (1905)    7   Sc.  Sess.  Cas. 

5th  series  (Scot.)  870 96. 

Herkey  v.  Agar  Mfg.  Co.    (1915)    90  Misc. 

457,    153    N.    Y.    Supp.    369 — 222, 

411. 
Herrick  v.  Minneapolis  &  St.  L.  R.  Co.  31 

Minn.    11,    47    Am.    Rep.    771,    16 

N.  W.  413 433,  434. 

Herrick's  Case    (1914)    217   Mass.  Ill,  104 

N.  E.  432,  4  N.  C.  C.  A.  554 250, 

252,  266. 

Hewitt  v.  Hudson's  Bay  Co.  (1910)  20  Mani- 
toba L.  Rep.  126,  15  West.  L.  Rep. 

(Can.)  372 — 116. 
v.  Stanley  Bros.    [1913]   W.  C.  &  Ins. 

Rep.    (Eng.)    495,  109  L.  T.  N.  S. 

384,  6  B.  W.  C.  C.  501 — 71. 
v.  The  Duchess  [1910]  1  K.  B.   (Eng.) 

772,  79  L.  J.  K.  B.  N.  S.  867,  102 

L.   T.   N.   S.   204,   26   Times   L.   R. 

300,  54  Sol.  Jo.  325,  3  B.  W.  C.  C. 

239 67. 

Hewlett  v.  Hepburn  (1899)   16  Times  L.  R. 

(Eng.)  56 158. 

Hichens  v.  Magnus  Metal  Co.  35  N.  J.  L.  J. 

327 — 278,  288. 
Hicks  v.  Maxton    (1907;   C.  C.)    124  L.  T. 

Jo.   (Eng.)   135,  1  B.  W.  C.  C.  150 

— 104,  445. 
Higgins  v.   Campbell    [1904]    1  K.  B.   328, 

affirmed  in  [1905]  A.  C.  230 287. 

v.  Central  New  England  &  W.  R.  Co. 

155  Mass.  176,  31  Am.  St.  Rep.  544, 

29  N.  E.  534 434. 

v.  Poulson  (1911)  5  B.  W.  C.  C.  (Eng.) 

66 — 80. 
v.  Poulson  [1912]  2  K.  B.  (Eng.)   292, 

81  L.  J.  K.  B.  N.  S.  690,  106  L.  T. 

N.    S.    518,    28    Times    L.    R.    323, 

[1912]    W.    N.    90,    [1912]    W.    C. 

Rep.  244,  5  B.  W.  C.  C.  340 — 163, 

164. 
Higgs  v.  Unicume    [1913]    1  K.  B.    (Eng.) 

595,  82  L.  J.  K.  B.  N.  S.  369,  108 

L.  T.  N.  S.  169,   [1913]   W.  N.  36, 

[1913]    W.   C.   &   Ins.   Rep.  263,  6 

B.  W.  C.  C.  205 148,  171. 

Hill  v.  Begg  [1908]  2  K.  B.  (Eng.)  802,  77 

L.   J.   K.  B.  N.   S.   1074,  99  L.   T. 

N.  S.  104,  24  Times  L.  R.  711,  52 

Sol.  Jo.  581 — 120,  364,  365. 

v.  Granby  Consol.  Mines   (1908)   12  B. 

C.  118 — 75,  77,  355. 

v.  Ocean  Coal  Co.  (1909)  3  B.  W.  C.  C. 

(Eng.)  29 — 139,  170. 

Hillestad    v.    Industrial    Ins.    Commission 
(1914)  80  Wash.  426,  141  Pac.  913, 
6  N.  C.  C.  A.  763 — 216,  246,  260. 


508 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Hills  v.  Blair   (1914)   182  Mich.  20,  148  N. 

W.  243,  7  N.  C.  C.  A.  409 — 232, 

235,  237,  241,  266,  320,  331,  332. 
Hine,  The  v.  Trevor,  4  Wall.  555,  18  L.  ed. 

451 439,  440. 

Hirschkorn    v.    Fiege    Desk    Co.    (1915)    — 

Mich.  — ,  150  N.  W.  851 256. 

Hoare  v.  Arding  (1911)  5  B.  W.  C.  C.  (Eng.) 

36 — 90. 
v.  The  Cecil  Rhodes  (1911)  5  B.  W.  C. 

C.  (Eng.)  49 — 118. 
v.  Truman  (1902)  71  L.  J.  K.  B.  N.  S. 

(Eng.)   380,  86  L.  T.  N.  S.  417,  50 

Week.  Rep.  396,  66  J.  P.  342,  4  W. 

C.  C.  58 — 202. 
Hockley  v.  West  London  Timber  &  Joinery 

Co.  [1914]  3  K.  B.  (Eng.)  1013,  83 

L,  J.  K.  B.  N.  S.  1520,   [1914]  W. 

N.  330,  58  Sol.  Jo.  705 — 96,  97. 
Hoddinott  v.  Newton   [1901]   A.  C.   (Eng.) 

49,  84  L.  T.  N.  S.  1,  70  L.  J.  Q.  B. 

N.  S.  150,  49  Week.  Rep.  380,  17 

Times  L.  R.  134 — 197,  198. 
v.  Newton  [1899]  1  Q.  B.   (Eng.)  1018, 

68  L.  J.  Q.  B.  N.  S.  495,  47  Week. 
Rep.  499,  80  L.   T.  N.   S.   558,  15 
Times  L.  R.  299 — 197,  198. 

Hodgson  v.  Robins  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)    65,   [1914]   W.  N.  47,  7  B. 

W.  C.  C.  232 — 86,  88. 
v.  West  Stanley  Colliery  [1910]  A.  C. 

(Eng.)    229,  79  L.  J.  K.  B.  N.  S. 

356,  102  L.  T.  N.  S.  194,  26  Times 

L.  R.  333,  54  Sol.  Jo.  403,  3  B.  W. 

C.  C.  260,  47  Scot.  L.  R.  881 123. 

Hoenig  v.  Industrial  Commission  (1915)  159 

Wis.  646,  150  K  W.  996,  8  N.  C. 

C.  A.  192   (reported  in  full  herein, 

p.  339) 233,  241,  266,  347. 

Hoey  v.  Superior  Laundry  Co.  (1913)  85  N. 

J.  L.  119,  88  Atl.  823 — 271. 
Hoff  v.  Hackett,  148  Wis.  32,  134  N.  W. 

132 369. 

Holmes  v.  Great  Northern  R.  Co.  [1900]  2 

Q.  B.  (Eng.)  409,  83  L.  T.  N.  S.  44, 

69  L.  J.  Q.  B.  N.  S.  854,  64  J.  P. 
532,  48  Week.  Rep.  681,  16  Times 
L.  R.  412 — 61,  329,  332. 

Holness  v.  Mackay  [1899]  2  Q.  B.  (Eng.) 
319,  68  L.  J.  K.  B.  N.  S.  724,  47 
Week.  Rep.  531,  80  L.  T.  N.  S.  831, 
15  L.  T.  N.  S.  831,  15  Times  L.  R. 
351 — 58,  60,  331. 

Holt  v.  Yates  (1909)  3  B.  W.  C.  C.  (Eng.) 
75 — 137. 

Homer  v.  Gough  [1912]  2  K.  B.  (Eng.)  303, 

81  L.  J.  K.  B.  N.  S.  261,  105  L.  T. 

N.  S.  732,  5  B.  W.  C.  C.  51 — 100. 
Honor   v.    Painter    (1911)    4    B.   W.   C.    C. 

(Eng.)  188 39. 

Hood  v.  Maryland  Casualty  Co.  206  Mass. 

223,  30  L.R.A.(N.S-)  1192,  138  Am. 

St.  Rep.  379,  92  N.  E.  329 — 280. 
Hopkins  v.  Michigan  Sugar  Co.    (1915)    — 

Mich.  — ,  150  N.  W.  325   (reported 

in  full  herein,   p.   310) 232,  233, 

314. 
Hopley  v.  Pool  (1915)  8  B.  W.  C.  C.  (Eng.) 

512 — 68. 
Hopwood  v.  Olive    (1910)    102  L.  T.  N.  S. 

(Eng.)  790,  3  B.  W.  C.  C.  357 78. 


Horn  v.  Lords  Comrs.  of  Admiralty  [1911]  1 

K.  B.   (Eng.)   24,  80  L.  J.  K.  B.  N.. 

S.   278,   103   L.    T.   N.    S.   614,   27 

Times  L.  R.  84,  4  B.  W.  C.  C.  1 

94. 
Horsfall  v.  Pacific  Mut.  L.  Ins.  Co.  32  Wash. 

132,  63  L.R.A.  425,  98  Am.  St.  Rep. 

846,  72  Pac.  1028 298. 

v.  The  Jura  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)    183,  6  B.  W.  C.  C.  213 

63,  351. 
Horsman  v.  Glasgow  Nav.  Co.  (1909)  3  B. 

W.  C.  C.  (Eng.)  27 — 149. 
Hosegood  v.  Wilson  [1911]  1  K.  B.  (Eng.) 

30,  80  L.  J.  K.  B.  N.  S.  519,  103- 

L.  T.  N.  S.  616,  27  Times  L.  R.  88, 

4  B.  W.  C.  C.  30 166,  174. 

Hoskins  v.  Lancaster  (1910)  26  Times  L.  R. 

(Eng.)    612,  3  B.  W.  C.  C.  476 

61,  329,  332. 
Hotel  Bond  Co.'s  Appeal    (1915)    89  Conn. 

143,    93   Atl.    245 215,   248,   250, 

252,  254,  266,  413-415,  439,  440. 
Houghton  v.  Sutton  Health  &  L.  G.  Collier- 
ies Co.   [1901]   1  K.  B.    (Eng.)   93, 

83  L.  T.  N.  S.  472,  70  L.  J.  Q.  B. 

N.  S.  61,  65  J.  P.  134,  49  Week. 

Rep.  196,  17  Times  L.  R.  54 158. 

Houlder  Line  v.  Griffin  [1905]  A.  C.  (Eng.) 

220,  7  W.  C.  C.  87 — 205,  206,  210. 
House  of  Lords  of  Plumb  v.  Cobden  Flour 

Mills  Co.   [1914]  A.  C.   (Eng.)   62, 

83  L.  J.  K.  B.  N.  S.  197  [1914]  W. 

C.  &  Ins.  Rep.  48,  109  L.  T.  N.  S, 

759,  [1913]  W.  N.  367,  51  Scot.  L. 

R.  861,  30  Times  L.  R.  174,  58  Sol. 

Jo.  184,  7  B.  W.  C.  C.  1,  Ann.  Cas. 

1914B,  495 — 52. 
Housley  v.  Hadfields  (1915)  8  B.  W.  C.  C. 

(Eng.)   497 — 148. 
Hovis  v.  Cudahy  Ref.  Co.    (1915)    95  Kan. 

505,  148  Pac.  626 413. 

Howard  v.  Driver  (1903)  5  W.  C.  C.  (Eng.) 

153 — 103,  362. 
v.  Illinois   C.   R.   Co.     See    Employers' 

Liability  Cases. 
Howard's  Case    (1914)    218  Mass.  404,  105- 

N.  E.  636,  5  N.  C.  C.  A.  449 — 239. 
Howards  v.  Wharton   [1913]  W.  C.  &  Ins. 

Rep.  (Eng.)  504,  6  B.  W.  C.  C.  614 

139. 

Howarth  v.  Knowles  [1913]  3  K.  B.  (Eng.) 

675,  82  L.  J.  K.  B.  N.  S.  1325,  109- 

L.  T.  N.  S.  278,  29  Times  L.  R. 

667,  57  Sol.  Jo.  471,  [1913]  W.  N. 

237,  6  B.  W.  C.  C.  596 — 94. 
v.  Samuelson    (1906)    104  L.   T.  N.   S. 

(Eng.)    907,  4  B.  W.  C.  C.  287 

178. 
Howe  v.  Fernhill  Collieries  [1912]  W.  C.  & 

Ins.  Rep.   (Eng.)  408,  107  L.  T.  N. 

S.  508,  5  B.  W.  C.  C.  629 68,  293. 

Howell    v.    Blackwell    [1912]    W.    C.    Rep. 

(Eng.)    186,  5  B.  W.  C.  C.  293 

173. 
v.Bradford    (1911)     104    L.    T.    N.    S. 

(Eng.)  433 135. 

Howells  v.  Vivian    (1901)    18  Times  L.  R. 

(Eng.)   36,  50  Week.  Rep.  163.  85 

L.  T.  N.  S.  529,  4  W.  C.  C.  106 

121,  122. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


509 


Hubball  v.  Everitt    (1900)    16  Times  L.  R. 

168,  5  W.  C.  C.  145 183. 

Huckle  v.  London  County  Council  (1910)  27 

Times  L.  R.  (Eng.)  112,  4  B.  W.  C. 

C.  113 — 73. 
Huggins  v.  Guest  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)   191,  6  B.  W.  C.  C.  80 40. 

Hughes  v.  Clover  [1909]  2  K.  B.  (Eng.)  798, 

78  L.  J.  K.  B.  N.  S.  1057,  101  L. 

T.  N.  S.  475,  25  Times  L.  R.  760, 

53  Sol.  Jo.  763,  affirmed  in  [1910] 

A.  C.  242,  79  L.  J.  K.  B.  N.  S.  470, 
102  L.  T.  N.  S.  340,  26  Times  L.  R. 
359,  54  Sol.  Jo.  375,  3  B.  W.  C.  C. 
275,  47  Scot.  L.  R.  885 34,  293. 

v.  Coed  Talon  Colliery  Co.  [1909]  1  K. 

B.  (Eng.)  957,  78  L.  J.  K.  B.  N.  S. 
539,  100  L.  T.  N.  S.  555 84,  88. 

v.  Postlethwaite  (1910)  4  B.  W.  C.  C. 

(Eng.)  105 — 118. 
v.  Summerlee  &  M.  Iron  &  Steel  Co. 

(1903)   5  Sc.  Sess.  Cas.  5th  series 

(Scot.)  784 — 134. 
v.  Thistle  Chemical  Co.  [1906-07]  S.  C. 

(Scot.)  607 — 181. 
v.  Vothey  Quarry  Co.  (1908;  C.  C.)  125 

L.  T.  Jo.  (Eng.)  471,  1  B.  W.  C.  C. 

416 — 190. 
Hugo  v.  Larkins  (1910)  3  B.  W.  C.  C.  (Eng.) 

228 33,  294. 

Hulehan  v.  Green  Bay,  W.  &  St.  P.  R.  Co. 

68  Wis.   520,  32  N.  W.   529 — [9] 

473. 
Hulley  v.  Moosbrugger   (1915)   —  N.  J.  L. 

— ,  93  Atl.  79 — 232,  240. 
Humber  Towing  Co.  v.  Barclay  (1911)  5  B. 

W.  C.  C.  (Eng.)  142— -138. 
Humphreys  v.  London  Electric  Lighting  Co. 

(1911)    4  B.  W.  C.  C.    (Eng.)    275 

142. 

Hunnewell's  Case  (1915)  220  Mass.  351,  107 

N.  E.  934 — 231,  257,  259,  264,  271. 
Hunt   v.    Grantham   Co-op.   Soc.    (1904;    C. 

C.)    112  L.  T.  N.  S.   (Eng.)   364,  4 

W.  C.  C.  67 — 206. 
v.  Highley  Min.  Co.  [1914]  W.  C.  &  Ins. 

Rep.  (Eng.)  402,  7  B.  W.  C.  C.  716 

— 88,  89. 
v.  Lowell  Gaslight  Co.  8  Allen,  169,  85 

Am.  Dec.  697 — 280. 
Hunter  v.  Baird,  7  F.   (Scot.)   304,  cited  in 

2  Mews,  Eng.  Cas.  Law  Dig.  (1898- 

07)  Supp.  1570 — 150,  373. 
v.  Colfax   Consol.    Coal   Co.    (1915)    — 

Iowa,   — ,   154   N.   W.   1037 — 220, 

413,  414,  422,  424-427. 
Hurle,  Re,  (1914)  217  Mass.  223,  104  N.  E. 

336,  Ann.  Cas.  1915C,  919,  4  N.  C. 

C.  A.  527   (reported  in  full  herein, 
p.  279) — 227,  229,  288,  290. 

Husband  v.  Campbell  (1903)  5  Sc.  Sess.  Cas. 

5th  series,  1146,  40  Scot.  L.  R.  822, 

11  Scot.  L.  T.  243 — 170. 
Huscroft  v.  Bennett  (1914)  110  L.  T.  N.  S. 

(Eng.)    494,    [1914]    W.   C.   &   Ins. 

Rep.  9,  58  Sol.  Jo.  284,  7  B.  W.  C. 

C.  41 — 44. 
Hutchinson    v.    New   Northern    Printing   & 

Weaving  Co.  [1914]  2  I.  R.  530,  48 

Ir.  Law  Times  33,  7  B.  W.  C.  C. 

971 — 184. 


Huyett  v.  Pennsylvania  R.  Co.  (1914)  86  N. 

J.  L.  683,  92  Atl.  58 — 261,  412. 
Huzik  v.  Erie  R.  Co.  85  N.  J.  L.  129.  89 

Atl.  248,  4  N.  C.  C.  A.  732,  affirmed 

in  86  N.  J.  L.  695,  92  Atl.  1087 

253. 
Hyndman  v.  Craig  (1911)  45  Ir.  Law  Times, 

11,  4  B.  W.  C.  C.  438 67. 


I 


Illingworth   v.   Walmsley    [1900]    2   Q.   B. 

(Eng.)   142,  82  L.  T.  N.  S.  647,  69 

L.  J.  Q.  B.  N.  S.  519,  16  Times  L. 

R.  281 143. 

Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S.  473, 

58   L.  ed.   1051,  34   Sup.  Ct.  Rep. 

646,  Ann.  Cas.  1914C,  163 456. 

Ing  v.  Higgs  (1914)  110  L.  T.  N.  S.  (Eng.) 

442,  [1914]  W.  C.  &  Ins.  Rep.  86, 

7  B.  W.  C.  C.  65 — 86. 
International    Harvester   Co.   v.    Industrial 

Commission    (1914)    157  Wis.  167, 

147  N.  W.  53,  5  N.  C.  C.  A.  822 — 

256,  266,  267,  269,  341. 
Interstate  Teleph.  &  Teleg.   Co.  v.   Public 

Service  Electric  Co.   (1914)   86  N. 

J.  L.  26,  90  Atl.  1062,  5  N.  C.  C.  A. 

524 — 226,  361. 
Irons  v.  Davis   [1899]   2  Q.  B.   (Eng.)   330, 

68  L.  J.  Q.  B.  N.  S.  673,  80  L.  T. 

N.  S.  673,  47  Week.  Rep.  616 — 143. 
Isaacson  v.  New  Grand  (Clapham  Junction) 

[1903]  1  K.  B.  (Eng.)  539,  72  L.  J. 

K.  B.  N.  S.  227,  88  L.  T.  N.  S.  291, 

19  Times  L.  R.  150 — 82. 
Ismay  v.  Williamson   [1908]   A.  C.    (Eng.) 

437,  77  L.  J.  P.  C.  N.  S.  107,  99 

L.  T.  N.  S.  595,  24  Times  L.  R.  881, 

52  Sol.  Jo.  713,  42  Ir.  Law  Times, 

213,  1  B.  W.  C.  C.  232 — 30,  32,  34, 

38,  43,  229,  280,  291,  293. 
Ivenhoe   Gold  Corp.   v.   Symonds    (1907)    4 

Austr.  C.  L.  R.  642 81. 

Ives  v.  South  Buffalo  R.  Co.  (1911)  201  N. 

Y.- 271,  34  L.R.A.(N.S.)   162,  94  N. 

E.  431,  1  N.  C.  C.  A.  517,  Ann.  Cas. 

1912B,    156 395,    398,    403,    409, 

413,  416,  423,  427. 
Ivey  v.  Ivey  [1912]  2  K.  B.  (Eng.)  118,  81 

L.  J.  K.  B.  N.  S.  819,  106  L.  T.  N. 

S.  485,  5  B.  W.  C.  C.  279 — 162, 

163. 


Jackson  v.  Denton  Colliery  Co.  [1914]  W. 

C.  &  Ins.  Rep.  (Eng.)  91,  110  L.  T. 

N.  S.  559,  7  B.  W.  C.  C.  92 — 53, 

78. 
v.  Erie  R.  Co.   (1914)  86  N.  J.  L.  550, 

91  Atl.  1035,  6  N.  C.  C.  A.  944 

250,  267. 
v.  Hunslet  Engine  Co.   (1915)   84  L.  J. 

K.  B.  N.  S.  (Eng.)  1361 — 144. 
v.  Rodger   (1899)    1  Sc.  Sess.  Cas.  5th 

series,  1053,  36  Scot.  L.  R.  851,  7 

Scot.  L.  T.  76   (1900)   37  Scot.  L. 

R.  390,  2  Sc.  Sess.  Cas.  5th  series, 

533,  7   Scot.  L.  T.  363 — 210,  211. 


510 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Jackson  v.  Roger  (1900)  2  Sc.  Sess.  Cas.  5th 

series,  533,  37   Scot.  L.  R.  390,  7 

Scot.  L.  T.  363 — 204,  210,  211. 
v.  Scotstoun   Estate   Co.    [1911]    S.   C. 

564,  48   Scot.   L.  R.  440,  4  B.  W. 

C.  C.  381 — 191. 
v.  Vickers    [1912]    W.   C.   Rep.    (Eng.) 

274,  5  B.  W.  C.  C.  432 — 85,  88. 
Jacowicz  v.  Delaware,  L.  &  W.  R.  Co.  (1915) 

-  N.  J.  — ,  92  Atl.  946 225,  361. 

James  v.  Mordey    (1913)    109   L.  T.  N.  S. 
(Eng.)    377,  6  B.  W.  C.  C.  680 

137,  142. 
v.  Ocean  Coal  Co.  [1904]  2  K.  B.  (Eng.) 

213,  73  L.  J.  K.  B.  N.  S.  915,  68 

J.  P.  431,  52  Week.  Rep.  497,  90 

L.  T.  N.  S.  834,  20  Times  L.  R. 

483 — 144. 
James  A.  Banister  Co.  v.  Kriger  (1913)  — 

N.  J.  L.  — ,  89  Atl.  923 — 262-264. 
v.  Kriger  (1913)  84  N.  J.  L.  30,  85  Atl. 

1027 — 262-264. 
Jamieson  v.  Clark  (1909)  46  Scot.  L.  R.  73, 

[1909]  S.  C.  132,  2  B.  W.  C.  C.  228 

— 106,  114. 
v.  Fife  Coal  Co.  (1903)  5  Sc.  Sess.  Cas. 

5th  series  (Scot.)  958 — 144. 
Janes's  Case   (1914)  217  Mass.  192,  104  K 

E.  556,  4  N.  C.  C.  A.  552 — 252,  266. 
Jefferson  Fertilizer  Co.  v.  Rich,  182  Ala.  633, 

62  So.  40 — 279. 
Jeffrey  Mfg.   Co.  v.  Blagg    (1914)   90  Ohio 

St.  376,  108  N.  E.  465 408,  410, 

413,  423,  459. 
v.  Blagg    (1914)    235  U.  S.  571,  59  L. 

ed.   364,   35   Sup.   Ct.   Rep.   167,   7 

N.  C.  C.  A.  570 408,  413,  423,  459. 

Jendrus  v.  Detroit  Steel  Products  Co.  178 

Mich.   265,    144   N.   W.   563,   Ann. 

Cas.    1915D,    476,    4    N.    C.    C.   A. 

864    (reported    in    full    herein,    p. 

381) — 244,  259,  356,  387. 
Jenkins  v.  Standard  Colliery  Co.  (1911)  105 

L.  T.  N.  S.   (Eng.)   730,  28  Times 

L.  R.  7,  5  B.  W.  C.  C.  71 — 67,  68, 

293. 
Jenkinson  v.  Harrison  (1911)  4  B.  W.  C.  C. 

(Eng.)    194 — 56. 
Jensen  v.  Southern  P.  Co.  (1915)  215  N.  Y. 

514,  109  N.  E.  600  (reported  in  full 

herein,    p.    403) — 217,    255,    416, 

419,  428,  462-464. 

Jensen  Case.    See  Jensen  v.  Southern  P.  Co. 
Jesson  v.  Bath  (1902;  C.  C.)  113  L.  T.  Jo. 

(Eng.)   206,  4  W.  C.  C.  9 — 58,  62. 
Jessop   v.    Maclay    (1911)    5   B.   W.    C.   C. 

(Eng.)  139 — 181. 
Jette  v.  Grand  Trunk  Co.  (1911)  Rap.  Jud. 

Quebec  40  C.  S.  204 — 78,  357. 
Jibb  v.  Chadwick  [1915]  2  K.  B.  (Eng.)  84, 

31  Times  L.  R.  185,  [1915]  W.  N. 

52,  8  B.  W.  C.  C.  152 49. 

Jillson  v.  Ross  (1915)  —  R.  I.  — ,  94  Atl. 

717 — 243,  267,  269. 
Jinks,  Re  (1914;  K.  B.  Div.)  137  L.  T.  Jo. 

(Eng.)   320 — 99. 
Jobson  v.  Cory  (1911)  4  B.  W.  C.  C.  (Eng.) 

284 — 135. 
John  v.  Albion  Coal  Co.  (1901)  18  Times  L. 

R.  (Eng.)  27,  65  J.  P.  788 — 77, 

357. 


Johnson  v.  Adshead  (1900;  C.  C.)  109  L.  T. 

Jo.  (Eng.)  40,  2  W.  C.  C.  158 

188. 
v.  London  General  Omnibus  Co.  (1905; 

C.  C.)   7  W.  C.  C.  (Eng.)   83 201, 

207. 
v.  Marshall    [190C>]    A.  C.    (Eng.)    409, 

75  L.  J.  K.  B.  N.  S.  868,  94  L.  T. 

N.  S.   828,  22  Times  L.  R    565,  5 

Ann.  Cas.  630,  8  W.  C.  C.  10 75, 

76,  79,  355-357. 
v.  Nelson  (1914)  128  Minn.  158,  150  N. 

W.  620 221,  410,  444. 

v.  Newton      Fire      Extinguisher      Co. 

[1913]   2  K.  B.   (Eng.)    Ill,  82  L. 

J.  K.  B.  N.  S.  541,  108  L.  T.  N.  S. 

360,   [1913]   W.  N.  37,   [1913]   W. 

C.  &  Ins.  Rep.  352,  6  B.  W.  C.  C. 

202 181. 

v.  Oceanic  Steam  Nav.  Co.   [1912]   W. 

C.  Rep.   (Eng.)   162,  5  B.  W.  C.  C. 

322 — 181,  189. 
v.  St.  Paul  &  W.  Coal  Co.  131   Wis. 

627,  111  S.  W.  722 [9]  473. 

v.  Torrington    (1909)    3    B.   W.    C.   C. 

(Eng.)    68 40. 

v.  Wootton    (1911)     27    Times    L.    R. 

(Eng.)  487,  4  B.  W.  C.  C.  258 85. 

Johnson's  Case   (1914)    217  Mass.  388,  104 

N.  E.  735,  4  N.  C.  C.  A.  843 — 227, 

229,  242,  266,  288,  290. 
Johnston  v.  Mew,  L.  &  Co.  (1907)  98  L.  T. 

N.  S.   (Eng.)   517,  24  Times  L.  R. 

175,  1  B.  W.  C.  C.  133 180,  181. 

v.  Monasterevan     General     Store     Co. 

[1909]    2    I.    R.    108,    42   Ir.   Law 

Times,  268,  2  B.  W.  C.  C.  183 — 97, 

364. 
Johnstone   v.   Cochran    (1904)    6   Sc.    Sess. 

Cas.  5th  series,  854,  41  Scot.  L.  R. 

644,  12  Scot.  L.  T.  175 172. 

v.  Spencer  [1908]   S.  C.  1015,  45  Scot. 

L.  R.  802,  1  B.  W.  C.  C.  302 — 163. 
Jones  v.   Anderson    (1914)    84  L.  J.  P.  C. 

N.  S.   (Eng.)    47,  112  L.  T.  N.  S. 

225,  31  Times  L.  R.  76,  [1914]  W. 

N.  432,  59  Sol.  Jo.  159,  [1915]  W. 

C.  &  Ins.  Rep.  151,  8  B.  W.  C.  C.  2 

32,  172,  179. 

v.  Davies    [1914]   3  K.  B.   (Eng.)   549, 

[1914]    W.   N.   280.   137   L.   T.  Jo. 

211,  83  L.  J.  K.  B.  N.  S.  1531,  7 

B.  W.  C.  C.  488 — 182. 

v.  Great  Central  R.  Co.  (1901)  4  W.  C. 

C.  (Eng.)   23 — 80,  182,  184. 

v.  London  &   N.   W.   R.  Co.    (1901)    4 

W.  C.  C.  (Eng.)  140 — 142. 
v.  London  &  S.  W.  R.  Co.  (1901)  3  W. 

C.  C.   (Eng.)   46 — 77,  357. 
v.  New  Brynmally  Colliery  Co.  [1912] 

W.  C.  Rep.  (Eng.)  281,  5  B.  W.  C. 

C.  375,  106  L.  T.  N.  S.  524 — 108. 
v.  Ocean    Coal    Co.     [1899]     2    Q.    B. 

(Eng.)    124,   68  L.  J.  Q.  B.  N.  S. 

731,  47  Week.  Rep.  484,  80  L.  T. 

N.  S.  582,  15  Times  L.  R.  339 

157,  158. 
v.  Penwyllt     Dinas     Silica    Brick    Co. 

[1913]   W.  C.  &  Ins.  Rep.   (Eng.) 

394,  6  B.  W.  C.  C.  492 115. 

v.  The  Alice  &  Eliza   (1910)    3  B.  W. 

C.  C.  (Eng.)  495 117. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


511 


Jones  v.  Tirdonkin  Colliery  Co..  (1911)  5  B. 

W.  C.  C.  (Eng.)  3 171,  172. 

v.  Walker  (1899;  C.  C.)   105  L.  T.  Jo. 

(Eng.)  579,  1  W.  C.  C.  142 149. 

v.  Winder    [1914]    W.  C.   &   Ins.   Rep. 

(Eng.)  38,  7  B.  W.  C.  C.  204 181. 

Jucker  v.  Chicago  &  N.  W.  R.  Co.  52  Wis. 

150,  8  N.  W.  862 [17]   481. 

Judd     v.     Metropolitan     Asylums     Board 

[1912]   W.  C.  Rep.    (Eng.)    220,  5 

B.  W.  C.  C.  420 — 92. 
Jury  v.  The  Atlanta  [1912]  3  K.  B.  (Eng.) 

366,  81  L.  J.  K.  B.  N.  S.  1182,  107 

L.  T.  N.  S.  366,  28  Times  L.  R. 

562,  56  Sol.  Jo.  703,  [1912]  W.  N. 

218,  5  B.  W.  C.  C.  681 — 152. 


Kane  v.  Merry  [1911]  S.  C.  533,  48  Scot. 

L.  R.  430,  4  B.  W.  C.  C.  379 55. 

Karemaker  v.  The  Corsican  (1911)  4  B.  W. 

C.  C.  (Eng.)  295 67. 

Karny  v.  Northwestern  Malleable  Iron  Co. 

(1915)    160   Wis.   316,   151   N.   W. 

786 — 219,  220. 
Kavanagh   v.   Caledonian  R.   Co.    (1903)    5 

Sc.  Sess.  Cas.  5th  series,  1128,  40 

Scot.  L.  R.  812,  11  Scot.  L.  T.  281 

— 202. 
Keane  v.  Nash  (1902;  C.  C.)  114  L.  T.  Jo. 

(Eng.)   102,  5  W.  C.  C.  53 — 83. 
v.  Nash,  19  Times  L.  R.  (Eng.)  419,  88 

L.  T.  N.  S.  790,  5  B.  W.  C.  C.  142 

— 83. 
Keaney's  Case  (1914)   217  Mass.  5,  104  N. 

E.  438,  4  N.  C.  C.  A.  556 — 246. 
Kearny  v.  Northwestern  Malleable  Iron  Co. 

(1915)    160   Wis.   316,   151   N.   W. 

786 — 219. 
Kearon  v.  Kearon  (1911)  45  Ir.  Law  Times, 

96,  4  B.  W.  C.  C.  435 66,  67. 

Ceast  v.  Barrow  Haematite  Steel  Co.  (1899) 

15  Times  L.  R.    (Eng.)    141,  63  J. 

P.   56,   1   W.   C.   C.   99 153,   157. 

Keeling  v.  Eastwood   (1904)    116  L.  T.  Jo. 

(Eng.)   595,  6  W.  C.  C.  167 — 186. 
Keen  v.  St.  Clement's  Press  (1914)  7  B.  W. 

C.  C.  (Eng.)  542 47. 

Keenan  v.  Flemington  Coal  Co.  40  Scot.  L. 

R.  144,  5  Sc.  Sess.  Cas.  5th  series, 

164,  10  Scot.  L.  T.  409 59,  237, 

319,  320. 
Keevans  v.  Mundy  [1914]  S.  C.  525,  2  Scot. 

L.  T.  350,  51  Scot.  L.  R.  462,  7  B. 

W.  C:  C.  883 — 186. 
Kelly  v.  Auchenlea  Coal  Co.   [1911]   S.  C. 

864,  48  Scot.  L.  R.  768,  4  B.  W.  C. 

C.  417 36,  229,  280,  291,  338. 

v.  Hopkins   [1908]   2  I.  R.   (Ir.)    84 — 

122. 
v.  Kerry  County  Council,  42  Ir.   Law 

Times,  23,  1  B.  W.  C.  C.  194 44, 

341,  344,  346,  347. 
v.  The  Foam  Queen  (1910)  3  B.  W.  C. 

C.    (Eng.)    113 — 60,  66,  331. 
v.  The  Miss  Evans  [1913]  2  I.  R.  385, 

47  Ir.  Law  Times,  155  [1913]  W. 

C.  &  Ins.  Rep.  418,  6  B.  W.  C.  C. 

916 113. 


Kelly  v.  Trim  Joint  District  School  [1913] 
W.  C.  &  Ins.  Rep.  401,  47  Ir.  Law 
Times,  151,  6  B.  W.  C.  C.  921, 
affirmed  in  [1914]  A.  C.  (Eng.)  667, 
111  L.  T.  N.  S.  306,  30  Times  L.  R. 

452,  [1914]    W.   N.   177,   7    B.   W. 
C.  C.  274,  83  L.  J.  P.  C.  N.  S.  220, 
58  Sol.  Jo.  493,  48  Ir.  Law  Times 
141,  [1914]  W.  C.  &  Ins.  Rep.  359 
38,  309. 

v.  York     Street     Flax     Spinning     Co. 

(1909;   C.  C.)   43  Ir.  L.  T.  Jo.  81, 

2  B.  W.  C.  C.  493 — 155. 
Kemp  v.  Darngavil  Coal  Co.   [1909]   S.  C. 

1314,  46  Scot.  L.  R.  939 — 102,  362. 
v.  Lewis    [1914]    3  K.  B.    (Eng.)    543, 

[1914]    W.   N.   264,   137   L.   T.  Jo. 

213,  83  L.  J.  K.  B.  N.  S.  1535,  111 

L.  T.  N.  S.  699,  7  B.  W.  C.  C.  422 

114. 

Kempson   v.   The   Moss   Rose    (1910)    4   B. 

W.  C.  C.   (Eng.)   101 — 105. 
Kendall  v.  Pennington  (1912)  106  L.  T.  N. 

S.    (Eng.)    817,   [1912]   W.  C.  Rep. 

144,  5  B.  W.  C.  C.  335 172. 

Kennedy   v.   David   Kaufman   &   Sons   Co. 

(1914)  —  N.  J.  L.  — ,  91  Atl.  99 

247. 
v.  Dixon  [1913]  W.  C.  &  Ins.  Rep.  333 

[1913]  S.  C.  659,  50  Scot.  L.  R. 

453,  6  B.  W.  C.  C.  434 162. 

v.  Grand  Trunk  P.  R.  Co.  (1913;  Sask.) 
7  B.  W.  C.  C.  1046 — 40,  41. 

Kennerson  v.  Thames  Towboat  Co.  (1915) 
89  Conn.  367,  94  Atl.  372,  (report- 
ed in  full  herein,  p.  436) — 214, 
215,  267,  270,  445,  461,  462. 

Kenny  v.  Harrison  [1902]  2  K.  B.  (Eng.) 
168,  71  L.  J.  K.  B.  N.  S.  783,  87  L. 
T.  N.  S.  318 — 203. 

v.  Union  R.  Co.  (1915)  166  App.  Div. 
497,  152  N.  Y.  Supp.  117,  8  N.  C. 
C.  A.  986 — 246,  266,  270. 

Kentucky  State  Journal  Co.  v.  Workmen's 
Compensation  Bd.  162  Ky.  387, 

172  S.  W.  674 402. 

v.  Workmen's  Compensation  Bd.  161 
Ky.  562,  170  S.  W.  1166  (reported 

in    full   herein,   p.   389) 410-414, 

428. 

Kerr  v.  Baird  [1911]  S.  C.  701,  48  Scot.  L. 

R.  646,  4  B.  W.  C.  C.  397 49,  54. 

(or  Lendrum)  v.  Ayr  Steam  Shipping 
Co.  (1914;  H.  L.)  30  Times  L.  R. 
664,  [1914]  W.  C.  &  Ins.  Rep.  438, 
[1914]  W.  N.  327,  58  Sol.  Jo.  737, 
[1914]  S.  C.  (H.  L.)  91,  51  Scot. 
L.  R.  733,  7  B.  W.  C.  C.  801,  rev'g 
[1913]  S.  C.  331,  50  Scot.  L.  R.  173, 
[1913]  W.  C.  &  Ins.  Rep.  10,  6  B. 
W.  C.  C.  326 — 70. 

v.  Ritchie  [1913]  S.  C.  613,  50  Scot.  L. 
R.  434,  [1913]  W.  C.  &  Ins.  Rep. 

297,  6  B.  W.  C.  C.  419 33,  294, 

295. 
v.  Stewart   (1909)   43  Ir.  L.  T.  119,  2 

B.  W.  C.  C.  454 162. 

Keyes-Davis  Co.  v.  Alderdyce,  Detroit  Legal 

News,  May  3d,  1913   (Mich.)   3  N. 

C.  C.   A.   639,   note 444. 


512 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Keyset  v.  Burdick   [1910]   4  B.  W.  C.  C. 

(Eng.)    87 — 50. 
Kier  v.  Benell  (1914)   7  Sask.  L.  R.  78 — 

142. 
Kierson    v.     Thompson     [1913]     1    K.    B. 

(Eng.)    587,  82  L.  J.  K.  B.  N.  S. 

920,  108  L.  T.  N.  S.  237,  29  Times 

L.  R.  205,  57  Sol.  Jo.  226,   [1913] 

W.  N.  12,  [1913]  W.  C.  &  Ins.  Rep. 

140,  6  B.  W.  C.  C.  60— -173. 
Kilgariff  v.  Associated  Gold  Mines   (1910) 

12   West.   Australian   L.   R.    73 

127. 
Kill  v.  Industrial  Commission,  160  Wis.  549, 

152   N.   W.   148    (reported   in   full 

herein,    p.    [14]    478) — 230,    238, 

259,  293. 
Kilpatriek  v.  Wemyss  Coal  Co.   [1906-07] 

S.  C.   (Scot.)   320 — 85. 
King  v.  Phrenix  Assur.  Co.  [1910]  2  K.  B. 

(Eng.)    666,  80  L.  J.  K.  B.  N.   S. 

44,  103  L.  T.  N.  S.  53,  3  B.  W.  C. 

C.  442 — 99. 
v.  United   Collieries   Co.    [1909-10]    S. 

C.   (Scot.)   42 — 167. 
v.  Viscoloid  Co.  (1914)   219  Mass.  420, 

106  N.  E.  988,  7  N.  C.  C.  A.  254 

223,  225. 
King's  Case  (1915)  220  Mass.  290,  107  N.  E. 

959 241,  248,  365. 

Kinghorn    v.    Guthrie    [1913]    S.    C.    1155, 

[1913]   W.  C.  &  Ins.  Rep.  509,  50 

Scot.  L.  R.  863,  6  B.  W.  C.  C.  887 

43. 

Kingsley  v.  Donovan  (1915)  —  App.  Div.  — , 

155  N.  Y.  Supp.  801 — 267. 
Kinney  v.  Baltimore  &  0.  Employes'  Relief 

Asso.  35  W.  Va.  385,  15  L.R.A.  142, 

14  S.  E.  8 — 331. 
Kitchenham  v.  The  Johannesburg  [1911]  1 

K.  B.    (Eng.)    523,  80  L.  J.  K.  B. 

N.  S.  313,  103  L.  T.  N.  S.  778,  27 

Times  L.  R.  124,  55  Sol.  Jo.  124,  4 

B.  W.  C.  C.  91 — 48,  66,  240,  308. 
v.  The    Johannesburg     [1911]     A.     C. 

(Eng.)    417,   80  L.  J.  K.  B.  N.  S. 

1102,    105    L.    T.    N.    S.    118,    27 

Times  L.  R.  504,  55  Sol.  Jo.  599,  4 

B.  W.  C.  C.  311 48,  66,  240,  308. 

Klawinski  v.  Lake  Shore  &  M.  S.  R.  Co. 

(1915)  —  Mich.  — ,  152  N.  W.  213 

(reported  in  full  herein,  p.  342) 

241,  346,  347. 
Knapp,  S.  &  Co.  Co.  v.  McCaffrey,  177  U.  S. 

638,    44    L.    ed.    921,    20    Sup.    Ct. 

Rep.  824 440. 

Knight  v.  Bucknill,  6  B.  W.  C.  C.  160,  [1913] 

W.  C.  &  Ins.  Rep.  175,  57  Sol.  Jo. 

245 120,  364,  365. 

v.  Cubitt  [1902]  1  K.  B.  (Eng.)  31,  71 

L.  J.  K.  B.  N.  S.  65,  66  J.  P.  52, 

85  L.  T.  N.  S.  526,  50  Week.  Rep. 

113,  18  Times  L.  R.  26 — 98,  197, 

212. 

Kniveton  v.  Northern  Employer's  Mut.  In- 
demnity Co.  (Div.  Ct.)  [1902]  1  K. 

B.  (Eng.)  880,  71  L.  J.  K.  B.  N.  S. 

588,  86  L.  T.  N.  S.  721,  50  Week. 

Rep.  704,  18  Times  L.  R.  504,  4 

W.  C.  C.  37 — 99,  100. 


Knopp   v.   American    Car   &   Foundry   Co. 
(1914)  186  111   App.  605,  5  N   C.  C. 

A.  798 — 240. 

Knott  v.  Tingle  Jacobs  &  Co.   (1911)  4  B. 

B.  W.  C.  C.   (Eng.)   55 — 159,  374. 
Kohler  v.  Frohmann   (1915)    167  App.  Div. 

533,  153  X.  Y.  Supp.  559 — 218. 
Krauss  v.  George  H.  Fritz  &  Son  (1915)  — 

N.  J.  — ,  93   Atl.   578 249. 

Krisman  v.  Johnston  City  &  B.  M.  Coal  & 

Min.  Co.  (1914)  190  111.  App.  612 — 221. 

Krzus  v.  Crow's  Nest  Pass  Coal  Co.  (1911) 

16    B.    C.    120,    17    West   L.   Rep. 

(Can.)   687 — 126. 
v.  Crow's   Nest  Pass  Coal  Co.   [1912] 

A.  C.  (Eng.)  590,  81  L.  J.  P.  C.  N. 

S.  227,   [1913]  W.  C.  &  Ins.  Rep. 

38,  107  L.  T.  N.  S.  77,  28  Times 

L.  R.  488,  56  Sol.  Jo.  632,  6  B.  W. 

C.  C.  270,  Ann.  Cas.  1912D,  859 — 
126. 

Kunza  v.  Chicago  &  N.  W.  R.  Co.  140  Wis. 
440,  123  N.  W.  403 328. 


Lacey  v.  Mowlen  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)   63,  7  B.  W.  C.  C.  135 — 88. 
Laing  v.  Young  (1900)  3  Sc.  Sess.  Cas.  5th 

series,    31,    38    Scot.    L.    R.    28,    8 

Scot.  L.   T.   230 — 204. 
Lamontagne  v.  Quebec  R.  Light,  Heat  &  P. 

Co.  (1914)  50  Can.  S.  C.  423 — 127. 
Lancaster  v.  Midland  R.  Co.  (1908;  C.  C.) 

124  L.  T.  Jo.   (Eng.)   439,  1  B.  W. 

C.  C.  418 — 183. 
Lane  v.  Lusty  [1915]  3  K.  B.   (Eng.)   230, 

84  L.  J.  K.  B.  N.  S.  1342,   [1915] 

W.  N.  252 — 62. 
Langley  v.   Reeve    (1910)    3   B.   W.  C.  C. 

(Eng.)   175 — 40. 
Lankester  v.  Miller-Hetherington   (1910)   4 

B.  W.  C.  C.   (Eng.)   80 — 103,  362. 
Larsen  v.  Paine  Drug  Co.   (1915)  —  App. 

Div.  — ,  155  N.  Y.  Supp.  759 — 218. 
Larson  v.   Boston  Elev.  R.   Co.  212  Mass. 

262,  98  N.  E.  1048^-280,  336. 
Lasturka  v.  Grand  Trunk  P.  R.  Co.  (1913) 

7  B.  W.  C.  C.  (Alberta)  1031 — 58. 
Lauer  v.  Northern  P.  R.  Co.  83  Wash.  465, 

145  Pac.   606 459. 

Law  v.  Baird  [1914]  S.  C.  423,  51  Scot.  L.  R. 

388,  [1914]  W.  C.  &  Ins.  Rep.  140, 

7  B.  W  C.  C.  846 — 148. 
v.  Graham  [1901]  2  K.  B.   (Eng.)   327 

201. 

Law  Car  &  General  Ins.  Corp.,  Re   (1913) 

110  L.  T.  N.  S.   (Eng.)  27,  58  Sol. 

Jo.    251 — 99. 
Lawless  v.  Wigan  Coal  &  I.  Co.  (1908)  124 

L.  T.  Jo.  (Eng.)  532,  1  B.  W.  C.  C. 

153 47,  61,  318,  332. 

Lawrie  v.  Brown   (1908)   S.  C.   (Scot.)   705 

189. 

Lawson  v.  Atlantic  Transport   Co.    (1900) 

82  L.  T.  N.  S.  (Eng.)  77,  16  Times 

L.  R.  181,  2  W.  C.  C  53 — 207. 
Leach   v.    Hickson    (1911)    4   B.   W.   C.   C. 

(Eng.)   163 — 89. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


513 


Leach  v.  Oakley  [1911]  1  K.  B.  (Eng.)  523, 

80  L.  J.  K.  B.  X.  S.  313,  103  L.  T. 

N.  S.  778,  27  Times  L.  R.  124,  55 

Sol.  Jo.  124,  4  B.  W.  C.  C.  91 67. 

Leaf  v.  Furze    (Div.  Ct.)    [1914]    3  K.  B. 

(Eng.)   1068,  83  L.  J.  K.  B.  N.  S. 

1822 — 31,  94. 
Lee  v.  Baird  [1908]   S.  C.  905,  45  Scot.  L. 

R.  717 — 137. 
v.  St.  George  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)   17,  7  B.  W.  C.  C.  85 46. 

v.  Stag  Line    (1912)    107   L.  T.  N.  S. 

(Eng.)  509,  56  Sol.  Jo.  720,  [1912] 

W.  C.  Rep.  398,  5  B.  W.  C.  C.  660 

69. 

v.  The   Bessie    [1912]    1   K.  B.    (Eng.) 

83,    [1912]    W.   N.   222,   105  L.  T. 

N.  S.  659,  81  L.  J.  K.  B.  N.  S.  114, 

[1912]  W.  C.  Rep.  57,  12  Asp.  Mar. 

L.  Cas.  89,  5  B.  W.  C.  C.  55,  Ann. 

Cas.  1913E,  477 — 122,  124,  370. 
Leech  v.  Life  &  Health  Assur.  Asso.  [1901] 

1  K.  B.  (Eng.)  707,  70  L.  J.  K.  B. 

N.  S.  544,  84  L.  T.  N.  S.  414,  17 

Times   L.   R.   354,   49   Week.   Rep. 

482,  3  W.  C.  C.  202 100,  179. 

Lees  v.  Dunkerley  Bros.   (1910)   103  L.  T. 

X.  S.  (Eng.)  467,  55  Sol.  Jo.  44 — 

102,  362. 
v.  Waring   (1909;  C.  C.)   127  L.  T.  Jo. 

(Eng.)   498,  2  B.  W.  C.  C.  474 

110. 
Legge  v.  Nixon's  Nav.  Co.  [1914]  W.  C.  & 

Ins.  Rep.  (Eng.)  7  B.  W.  C.  C.  521 

— 141. 
Legget  v.  Burke  (1902)  4  Sc.  Sess.  Cas.  5th 

series,  693,  39   Scot.  L.  R.  448,  9 

Scot.  L.  T.  518 126. 

Lehmann   v.   Ramo   Films    (1915)    —  Misc. 

— ,  155  N.  Y.  Supp.  1032 443. 

Leishmann  v.  Dixon    (1910)    S.  C.  498,  47 

Scot.  L.  R.  410,  3  B.  W.  C.  C.  560 

— 79,  357. 
Leisy  v.  Hardin,  135  U.  S.  100,  34  L.  ed.  128, 

3   Inters.   Com.   Rep.    36,   10   Sup. 

Ct.  Rep.  681 — 452. 
Leon  v.  Galceran,  11  Wall.  185,  20  L.  ed. 

74_440. 
Leonard  v.  Baird    (1901)    3  Sc.   Sess.  Cas. 

5th  series.  890,  38  Scot.  L.  R.  649, 

9  Scot.  L.  T.  83 — 155. 
Lester  v.  Otis  Elevator  Co.  (1915)  90  Misc. 

649,   153   N.   Y.   Supp.   1058 226, 

360. 
Lewis,  Re  (1913)  18  B.  C.  329,  7  B.  W.  C.  C. 

1038 — 178. 
v.  Great  Western  R.  Co.  (1877)  L.  R. 

3  Q.  B.  Div.   (Eng.)   195,  47  L.  J. 

Q.  B.  N.  S.  131,   37  L.   T.  N.   S. 

774,  26  Week.  Rep.  255 — 75. 
v.  Port  of  London  Authority  [1914]  58 

Sol.  Jo.  (Eng.)  686,  7  B.  W.  C.  C. 

577 — 133,    134. 

v.  Stanbridge  (1913)  W.  C.  &  Ins.  Rep. 
(Eng.)  515,  6  B.  W.  C.  C.  568 — 
119. 

Limron  v.  Blair  (1914)  181  Mich.  76,  147  N. 
W.  546,  5  N.  C.  C.  A.  866 — 257. 

Lindauer  O'Connel  Co.  v.  Hoenig,  Wis.  In- 
dus. Com. 344. 

Lindsay  v.  M'Glashan  [1908]  S.  C.  762,  45 
Scot.  L.  R.  559 126,  371. 


Linklater   v.   Webster    (1904)    6  W.  C.  C. 

(Eng.)  50 85. 

Liondale   Bleach,   Dye,  &   Paint   Works  v. 

Riker   (1913)    85  N.  J.  L.  426,  89 

Atl.  929,  4  N.  C.  C.  A.  713 — 228, 

278,  290. 
Little  v.  MacLellen  (1900)  2  Sc.  Sess.  Cas. 

5th  series,  387,  37  Scot.  L.  R.  287, 

7  Scot  L.  T.  313 — 73. 
Littleford  v.  Connell  (1909)  3  B.  W.  C   C 

(Eng.)  1 — 136. 
Lloyd   v.   Midland   R.   Co.    [1914]    2   K.  B. 

(Eng.)  53,  83  L.  J.  K.  B.  N.  S.  330, 

110  L.  T.  N.  S.  513,  30  Times  L. 
R.  247,  58  Sol.  Jo.  249,  [1914]  W. 
X.   32,    [1914]   W.   C.   &   Ins.  Rep. 
105,  7  B.  W.  C.  C.  72 — 152,  374. 

v.  Powell     Duffryn     Steam    Coal    Co. 
(H.   L.)    [1914]   A.  C.    (Eng.)    733, 

111  L.  T.  X.  S.  388,  83  L.  J.  K.  B. 
X.  S.  1054,  30  Times  L.  R.  456,  58 
Sol.   Jo.   514,   7   B.  W.   C.   C.   330, 
rev'g,  [1913]  2  K.  B.  130,  82  L.  J. 
K.  B.  X.   S.  533,  108  L.  T.  X.  S. 
201,  29   Times  L.  R.  291,  57   Sol. 
Jo.  301,   [1913]   W.  X.  51,   [1913] 
W.   C.   &   Ins.  Rep.   355,  6   B.   W. 
C.  C.  142 124. 

v.  Sugg  [1900]  1  Q.  B.  (Eng.)  486,  69 

L.  J.  Q.  B.  X.  S.  190,  81  L.  T.  N. 

S.    768,    16    Times   L.   R.   65 35, 

294. 
Lochgelly  Iron  &  Coal  Co.  v.  Sinclair  [1909] 

S.  C.    (Scot.)   922 166,  187. 

Logue  v.  Fullerton  (1901)  3  Sc.  Sess.  Cas. 

5th  series,  1006,  38  Scot.  L.  R.  738, 

9  Scot.  L.  T.  152 — 76,  356. 
Lommen    v.    Minneapolis    Gaslight    Co.    65 

Minn.  196,  33  L.R.A.  437,  60  Am. 

St.  Rep.  450,  68  X.  W.  53 402. 

London  &  E.  S.  Co.  v.  Brown  (1905)   7  Sc. 

Sess.  Cas.  5th  Series,   (Scot.)   488 

— 57. 
London  &  I.  Docks  Co.  v.  Midland  R.  Co. 

18  Times  L.  R.  (Eng.)  171,  71  L.  J. 

K.  B.  X.  S.  153,  86  L.  T.  X.  S.  29, 

reversed  in  [1902]  1  K.  B.  568,  18 

Times  L.  R.  325,  71  L.  J.  K.  B.  X. 

S.  369,  50  Week.  Rep.  461,  86  L. 

T.  X.  S.  339 — 200. 
London  &  N.  W,  R.  Co.  v.  Taylor  (1910)  4 

B.  W.  C.  C.   (Eng.)   11 — 170. 
Long    v.    Bergen    County    Ct.    of    Common 

Pleas    (1913)    84  X.  J.  L.  117,  86 

Atl.  529 263,  268. 

Longhurst  v.  The  Clement  [1913]  W.  C.  & 
Ins.  Rep.    (Eng.)   312,  6  B.  W.  C. 

C.  218 — 160. 

I  Lord  v.  Turner  (1902;  C.  C.)  114  L.  T.  Jo. 

(Eng.)    133,  5  W.  C.   C.  87 196, 

208. 
Lord  Halsbury  &  Powell  v.  Main  Colliery 

Co.  [1900]  A.  C.  (Eng.)  366,  69  L. 

J.  Q.  B.  X.  S.  758,  49  Week.  Rep. 

49,  83  L.  T.  X.  S.  85,  16  Times  L. 

R.  466,  65  J.  P.  100 84. 

Losh  v.  Evans  (1903)  51  Week.  Rep.  (Eng.) 

243,  19  Times  L.  R.  142 49. 

Lottawanna,  The,  21  Wall.  558,  22  L.  ed. 

654 — 448. 
Lovelady  v.  Berrie   (1909)   2  B.  W.  C.  C. 

(Eng.)   62 — 71,  291. 
33 


514 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Low  v.  Abernathy  (1900)  2  Sc.  Sess.  Cas. 
5th  series,  722,  37  Scot.  L.  R.  506, 
7  Scot.  L.  T.  423 — 210. 
v.  General  Steam  Fishing  Co.  [1909] 
A.  C.  (Eng.)  523,  78  L.  J.  P.  C. 
N.  S.  148,  101  L.  T.  N.  S.  401, 
25  Times  L.  R.  787,  53  Sol.  Jo. 
763 — 59,  320. 

Lowe  v.  Myers  [1906]  2  K.  B.  (Eng.)  265, 
75  L.  J.  K.  B.  N.  S.  651,  95  L.  T. 

N.  S.  35,  22  Times  L.  R.  614 85, 

86. 

v.  Pearson  [1899]  1  Q.  B.  261,  68  L.  J. 

Q.  B.  N.  S.  122,  47  Week.  Rep.  193, 

79  L.  T.  N.  S.  654,  15  Times  L.  R. 

124 — 56,  76,   [22J   486. 

Lowestoft  Corp.  v.  Aldridge  (1912)  5  B.  W. 

C.  C.  (Eng.)  329 — 182. 
Lowry  v.  Sheffield  Coal  Co.  (1907)  24  Times 
L.  R.  (Eng.)  142,  1  B.  W.  C.  C.  1 — 
58,  329. 

Lowth  v.  Ibbotson  [1899]  1  Q.  B.  (Eng.) 
1003,  80  L.  T.  N.  S.  341,  68  L.  J. 
Q.  B.  N.  S.  465,  47  Week.  Rep. 
506,  15  Times  L.  R.  264 — 194. 
Luckie  v.  Merry  (1915)  31  Times  L.  R. 
(Ens.)  466,  [1915]  W.  N.  243,  59 
Sol/Jo.  544 — 92,  93. 

Luckwell  v.  AUCF- en  Steam  SHpping  Co. 
[1913]  W.  C.  &  Ins.  Rep.  (Eng.) 
167,  108  L.  T.  N.  S.  52,  12  Asp. 
Mar.  L.  Cas.  286,  6  B.  W.  C.  C. 
51 — 96. 

Lundin  Steel  Casting  Co.,  Re,  220  Mass. 
526,  108  N.  E.  466  (reported  in 
full  herein  p.  333 — 228,  233,  234, 
241,  3C5,  339. 
Lunt  v.  Sut+on  Heath  &  L.  G.  Collieries 
(1911)  4  B.  W.  C.  C.  (Eng.)  219 — 
184. 

Lydman  v.  De  Haas  (1915)  —  Mich.  — , 
151  N.  W.  718,  8  N.  C.  C.  A.  649 — 
220. 

Lynch  v.  Baird  (1904)  6  Sc.  Sess.  Cas.  5th 
Series,  271,  41  Scot.  L.  R.  214,  11 

Scot.  L.  T.  597 77,  357. 

v.  Lansdowne,  48  Ir.  Law  Times,  89 — 

92. 

Lysons  v.  Knowles  [1900]  1  Q.  B.  (Eng.) 
780,  69  L.  J.  Q.  B.  N.  S.  449,  64 
J.  P.  292,  48  Week.  Rep.  408,  82 
L.  T.  N.  S.  189,  16  Times  L.  R. 

250 155. 

v.  Knowles  [1901]  A.  C.  (Eng.)  79,  70 
L.  J.  Q.  B.  N.  S.  170,  65  J.  P.  388, 
49  Week.  Rep.  636,  84  L.  T.  N.  S. 
65,  17  Times  L.  R.  156 — 155. 


M 


M'Adam  v.  Harvey  [1903]  2  L  R.  (Ir.)  511 

— 67. 
M'Allan     v.     Perthshire     County     Council 

(1906)    8  Sc.  Sess.  Cas.  5th  series 

(Scot.)  783 44. 

Macandrew  v.  Gilhooley  [1911]  S.  C.  448,  48 

Scot.  L.  R.  511,  4  B.  W.  C.  C.  370 

— 73. 
McArdle  v.  Swansea  Harbour  Trust  (1915) 

8  B.  W.  C.  C.  (Eng.)  489 34. 


McArthur  v.  McQueen    (1901)    3   Sc.   Sess. 

Cas.  5th  Series,  1010,  38  Scot.  L.  R. 

732,  9  Scot.  L.  T.  114 — 76,  356. 
McAvan  v.  Boase  Spinning  Co.  (1901)  3  Sc. 

Sess.  Cas.  5th  series,  1048,  38  Scot. 

L.  R.  772,  9  Scot.  L.  T.  152 161. 

McCabe  v.  Jopling   [1904]    1  K.  B.    (Eng.) 

222,  73  L.  J.  K.  B.  N.  S.  129,  89 

L.   T.  N.   S.   624,   20   Times   L.  R, 

119,  52   Week.  Rep.  358,  68  J.  P. 

12i 198   212 

v.  North    [1913]    W.    C.    &    Ins.    Rep. 

(Eng.)   522,  109  L.  T.  N.  S.  369,  6 

B.  W.  C.  C.  504 49. 

M'Carthy    v.    Norcott    (1908)    43    Ir.    Law 

Times,  17 — 120,  364,  365. 
v.  Stapleton-Bretherton  (1911)  4  B.  W. 

C.  C.   (Eng.)  281 — 184. 
M'Clelland  v.  Todd    (1909;   Recorder's  Ct.) 

43  Ir.  Law  Times,  75,  2  B.  W.  C.  C. 
472 — 115. 
McClench  v.  Waldron,  204  Mass.  554,  91  N, 

E.  126 364. 

M'Connell  v.   Galbraith    (1913)   48  Ir.  Law 

Times  30,  W.  C.  &  Ins.  Rep.  92,  7 

B.  W.  C.  C.  968 — 119. 
McCord  v.  The  City  of  Liverpool  [1914]  a 

K.  B.   (Eng.)   1037,  30  Times  L.  R. 

651,  [1914]  W.  N.  329,  83  L.  J.  K. 

B.  N.  S.  1683,  7  B.  W.  C.  C.  767 

106. 
McCormick  v.   Kelliher    (1912)    7  D.  L.  R. 

(B.  C.)  732 — 82. 
v.  Kelliher  Lumber  Co.  (1912)  17  B.  C. 

422,  6  B.  W.  C.  C.  947 — 81. 
v.  Kelliher  Lumber  Co.  (1913;  B.  C.)  7 

B.  W.  C.  C.  1025 — 45,  81. 
McCoy  v.  Michigan  Screw  Co.  180  Mich.  454, 

147  N.  W.  572,  5  N.  C.  C.  A.  455 

(reported  in  full  herein,  p.  323) 

235,  241,  326. 
McCracken  v.  Missouri  Valley  Bridge  &  Iron 

Co.    (1915)    --  Kan.   — ,   150   Pac. 

832 — 263. 
M'Crae  v.  Renfrew  (1914)  2  Scot.  L.  T.  354, 

51    Scot.   L.   R.   467    [1914]    S.   C. 

539,  7  B.  W.  C.  C.  898 — 62,  351. 
M'Cready  v.  Dunlop  (1900)  2  Sc.  Sess.  Cas, 

5th  series,  1027,  37  Scot.  L.  R.  779, 

8  Scot.  L.  T.  91 — 118. 
McCue  v.  Barclay    (1902)    4  Sc.  Sess.  Cas. 

5th  series,  909,  39  Scot.  L.  R.  690, 

10  Scot.  L.  T.  116 156,  157. 

McDaid  v.  Steel  [1911]  S.  C.  859,  48  Scot. 

L.  R.  765,  4  B.  W.  C.  C.  412 — 55. 
McDermott  v.  The  Tintoretto  [1911]  A.  C. 

(Eng.)  35,  80  L.  J.  K.  B.  N.  S.  161,. 

103  L.  T.  N.  S.  769,  27  Times  L.  R. 

149,  55  Sol.  Jo.  124,  11  Asp.  Mar. 

L.  Cas.  515,  4  B.  W.  C.  C.  123,  48 

Scot.  L.  R.  728 — 105,  149. 
M'Diarmid  v.  Ogilvy  Bros.  [1913]  W.  C.  & 

Ins.  Rep.  537,  50  Scot.  L.  R.  883,  6 

B.  W.  C.  C.  878 — 56. 
McDonald  v.  Browns,  23  R.  I.  546,  58  L.R.A. 

768,  91  Am.  St.  Rep.  659,  51  AtL 

213 — 279. 
v.  Dunlop   (1905)    7  Sc.  Sess.  Cas.  5th 

scries   (Scot.)   533 — 72 
v.  Fairfield  Shipbuilding  &  Engineering. 

Co.    (1905)    8    Sc.    Sess.    Cas.    5th 

series  (Scot.)  8 — 185. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


515 


McDonald  v.  Hobbs  (1899)  2  Sc.  Sess.  Gas. 

5th  series,  3,  37   Scot.  L.  R.  4,  7 

Scot.  L.  T.  157,  36  Scot.  L.  R.  393 

199. 

v.  Snelling,  14  Allen,  290,  92  Am.  Dec. 

768 — 336. 
v.  The  Banana   [1908]  2  K.  B.  (Eng.) 

926,  78  L.  J.  K.  B.  N.  S.  26,  99  L. 

T.  N.  S.  671,  24  Times  L.  R.  887, 

52  Sol.  Jo.  741,  1  B.  W.  C.  C.  185 

39,  67,  69. 

v.  Wilsons  &  C.  Coal  Co.  [1912]  A.  C. 

(Eng.)    513,    [1912]   S.  C.    (H.  L.) 

74,  81  L.  J.  P.  C.  N.  S.  188,  106 

L.   T.  N.  S.  905,  28  Times  L.  R. 

431,  56  Sol.  Jo.  550,  [1912]  W.  N. 

145,   [1912]   W.  C.  Rep.  302,  5  B. 

W.  C.  C.  478,  49  Scot.  L.  R.  708 — 

147,  255,  379,  381. 
McDougal  v.  New  Richmond  Roller  Mills  Co. 

125  Wis.  121,  103  N.  W.  244 — 369. 
M'Dougall  v.   M'Dougall    [1911]    S.  C.  426, 

48  Scot.  L.  R.  315,  4  B.  W.  C.  C. 
373      117 

McEwan  v.  Baird    [1909-10]    S.  C.    (Scot.) 

436 — 167. 
v.  Perth    (1905)    7    Sc.    Sees.   Gas.   5th 

series  (Scot.)  714 — 206,  207. 
McFarland  v.  Central  R.  Co.   (1913)   84  N. 

J.  L.  435,  87  Atl.  144,  4  N.  C.  C.  A. 

592 — 253,  271. 
McGarvey  v.  Independent  Oil  &  Grease  Co. 

(1914)    156   Wis.   580,   146   N.   W. 

895,  5  N.  C.  C.  A.  803 — 226,  362. 
M'Geown  v.  Workman,  C.  &  Co.   (1911)  45 

Ir.  Law  Times  165 184. 

M'Ghee  v.  Summerlee  Iron  Co.  [1911]  S.  C. 

870,  48   Scot.   L.  R.   807,  4  B.  W. 

C.  C.  424 — 171. 
MacGillivray  v.  Northern  Counties  Institute 

[1911]    S.   C.   897,   48   Scot.   L.  R. 

811,  4  B.  W.  C.  C.  429 117. 

M'Ginn  v.  Udston  Coal  Co.  [1912]  S.  C.  668, 

49  Scot.  L.   R.  531,   [1912]    W.  C. 
Rep.  134,  5  B.  W.  C.  C.  559 — 108. 

McGinty  v.  Kyle   [1911]   S.  C.   (Scot.)   589 

— 84. 
McGovern  v.  Cooper  (1902)  4  Sc.  Sess.  Gas. 

5th  series,  249,  39  Scot.  L.  R.  102, 

9  Scot.  L.  T.  270 — 98,  194. 
M'Gowan  v.  Smith  [1906-07]  S.  C.   (Scot.) 

548 — 81. 
McGrath  v.  London  &  N.  W.  R.  Co.  [1913] 

W.  C.  &  Ins.  Rep.  (Eng.)  198,  6  B. 

W.  C.  C.  251 — 55. 
v.  Neill  [1902]  1  K.  B.  (Eng.)  211,  71 

L.  J.  K.  B.  N.  S.  58,  66  J.  P.  180, 

50  Week.  Rep.  162,  18  Times  L.  R. 
36 — 196. 

M'Gregor  v.  Dansken  (1899)  1  Sc.  Sess.  Gas. 

5th  series,  536,  36  Scot.  L.  R.  393, 

6  Scot.  L.  T.  308 — 118,  212. 
v.  Wright    (1901;    C.   C.)    3   W.   C.   C. 

(Eng.)  121 — 197,  199,  208. 
M'Groarty  v.  Brown  (1906)  8  Sc.  Sess.  Gas. 

5th    series    (Scot.)    809 — 78,   351, 

356. 
McGuigan  v.  Maryland  Casualty  Co.  Mass. 

I.  A.  Board,  cited  in  1  Bradbury's 

Workmen's    Compensation,    367 — 


McGuire  v.  Gabbott   (1915)   8  B.  W.  C.  C. 

(Eng.)   555 53. 

v.  Paterson  [1913]  S.  C.  400,  50  Scot. 

L.  R.  289,  [1913]  W.  C.  &  Ins.  Rep. 

107,  6  B.  W.  C.  C.  370 — 185. 
McGuire  Case  (1911)   219  U.  S.  549,  55  L. 

ed.   328,   31    Sup.   Ct.   Rep.   259 

411. 
M'Innes  v.  Dunsmuir   [1908]   S.  C.  (Scot.) 

1021 — 34,  294. 
Mclntyre  v.  Hilliard   Hotel  Co.    (1915)   — 

App.  Div.  — ,  155  N.  Y.  Supp.  859 

— 218. 
v.  Rodger   [1903]   6  Sc.  Sess.  Gas.  5th 

series,  176,  41  Scot.  L.  R.  107,  11 

Scot.  L.  T.  467 — 39,  48. 
Mackay  v.  Rosie  [1912]  S.  C.  (H.  L.)  7,  49 

Scot.  L.  R.  48,  56  Sol.  Jo.  48,  105 

L.  T.  N.  S.  682,  5  B.  W.  C.  C.  181 

— 129. 
M'Kee  v.  Great  Northern  R.  Co.  (1908)  42 

Ir.  Law  Times,  132,  1  B.  W.  C.  C. 

165 — 52,  331. 
v.  Stein  [1910]  S.  C.  38,  47  Scot.  L.  R. 

39,  3  B.  W.  C.  C.  544 159. 

M'Kenna   v.    United    Collieries    (1906)    Sc. 

Sess.  Gas.  5th  series  (Scot.)  969 — 

82. 
Mackenzie  v.  Coltness  Iron  Co.  (1904)  6  Sc. 

Sess.  Gas.  5th  series    (Scot.)    8— 

61,  332. 
v.  Coltness  Iron  Co.  41  Scot.  L.  R.  6 — 

237,  319. 
McKeown  v.  McMurray   (1911)  45  Ir.  Law 

Times,  190 49. 

Mackey  v.  Rosie  [1908]  S.  C.  174,  45  Scot. 

L.  R.  178,  1  B.  W.  C.  C.  52 — 73. 
Mackin  v.  Detroit-Timkin  Axle  Co.   (1915> 

—  Mich.  — ,  153  X.  W.  49 271r 

412,  413,  424-426. 
Mackinnon  v.  Miller   [1909]    S.  C.  373,  4ft 

Scot.  L.  R.  299 — 70. 
McKrill  v.   Howard,  (1909)    2  B.  W.  C.  C. 

(Eng.)  460 — 59,  116,  320. 
M'Laren  v.  Caledonian  R.  Co.  [1911]  S.  C. 

1075,  48  Scot.  L.  R.  885,  5  B.  W. 

C.  C.  492 — 41,  51. 
M'Laughlin  v.  Anderson  [1911]  S.  C.  529,  48 

Scot.  L.  R.  349,  4  B.  W.  C.  C.  37S 

— 59,  320. 
v.  Clayton    (1899)   1  W.  C.  C.    (Bug.)- 

116 — 183. 
v.  Pumpherston  Oil  Co.  (1914)  52  Scot. 

L.  R.  48,  8  B.  W.  C.  C.  354 185. 

v.  Wemyss  Coal  Co.  [1912]  W.  C.  Rep. 

67,  49  Scot.  L.  R.  202 — 182. 
M'Lean  v.  Allan  Line  S.  S.  Co.  [1912]  S.  C. 

256,  49  Scot.  L.  R.  207,  5  B.  W.  C. 

C.  527 — 184. 
v.  Carse    (1899)    1    Sc.   Sess.   Gas.   5th. 

series,  878,  36  Scot.  L.  R.  678,  7 

Scot.  L.  T.  26 86. 

v.  Moss  Bay  Hematite  Iron  &  Steel  Co. 

(H.  L.)    [1910]  W.  N.   (Eng.)  102, 

54  Sol.  Jo.  441,  3  B.  W.  C.  C.  402 

— 123. 
v.  Moss  Bay  Iron  &  Steel  Co.  [1909]  2 

K.  B.    (Eng.)    521,  78  L.  J.  K.  B. 

N.  S.  849,  100  L.  T.  N.  S.  871,  25- 

Times  L.  R.  633 — 124. 


516 


TABLE  OF  CASES  REPORTED  AND  CITED. 


M'Luckie  v.  Watson  [1913]  S.  C.  975,  [1913] 

W.  C.  &  Ins.  Rep.  481,  50  Scot.  L. 

R.  770,  6  B.  W.  C.  C.  850 — 37,  46, 

291. 
M'Millan  v.  Barclay  (1899)  2  Sc.  Sess.  Cas. 

5th  series,  91,  37  Scot.  L.  R.  61,  7 

Scot.  L.  T.  214 213. 

v.  Singer  Sewing  Mach.  Co.   [1913]   S. 

C.  346,   [1913]   W.  C.  &  Ins.  Rep. 

70,  50  Scot.  L.  R.  220,  6  B.  W.  C. 

C.  345,  [1912]  2  Scot.  L.  T.  484 

37,  291. 
McNally  v,  Fitzgerald    (1914)    48  Ir.  Law 

Times  4,  7  B.  W.  C.  C.  966 — 119. 
v.  Furness  [1913]  3  K.  B.    (Eng.)   605, 

82  L.  J.  K.  B.  N.  S.  1310,  109  L. 

T.  N.  S.  270,  29  Times  L.  R.  678, 

[1913]   W.  N.  239,  6  B.  W.  C.  C. 

664,  [1913]  W.  C.  &  Ins.  Rep.  717 

— 31,  137. 
v.  Hudson  &  M.  R.  Co.    (1915)    —  N. 

J.  L.  — ,  95  Atl.  122 — 259,  388. 
McNamara  v.  Burtt   (1911)    4  B.  W.  C.  C. 

(Eng.)  151 — 145. 
McNaughton  v.   Cunningham    [1910]    S.  C. 

980,  47   Scot.   L.  R.   781,  3   B.  W. 

C.  C.  576 — 171,  186. 
M'Neice  v.  Singer  Sewing  Mach.  Co.  [1911] 

S.  C.  12,  48  Scot.  L.  R.  15,  4  B.  W. 

C.  C.  351 42,  48,  314. 

JMcNicholas  v.  Dawson  [1899]  1  Q.  B.  (Eng.) 

773,  68  L.  J.  Q.  B.  N.  S.  470,  1  W. 

C.  C.  80 — 50,  53,  67,  76,  208. 
McNicol,  Re  (1913)   215  Mass.  497,  102  N. 

E.  697,  4  K  C.  C.  A.  522  (reported 

in   full   herein,  p.  306) — 231,  232, 

239,  250,   270,  272,   306,  309,  312, 

317,  320,  322,  338,  341,  379. 
v.  Spiers    (1899)    1  Sc.   Sess.  Cas.  5th 

series,  604,  36   Scot.  L.  R.  428,  6 

Scot.  L.  T.  353 — 76,  356. 
McPhee,  Re   (1915)  —  Mass.  — ,  109  N.  E. 

633 — 229,  234,  236,  267,  271,  291, 

332. 
McQueeney  v.  Sutphen  (1915)  167  App.  Div. 

528,  153  N.  Y.  Supp.  554 215,  218, 

421. 
M'Quibban  v.  Menzies,  37  Scot.  L.  R.  526 

[1900]  2  F.  732,  7  Scot.  L.  T.  432 

[21]    485. 

McRoberts  v.  National  Zinc  Co.   (1914)   93 

Kan.  364,  144  Pac.  247 214,  223. 

M'Taggart   v.  Barr    (1914)    52   Scot.  L.  R. 

125,  8  B.  W.  C.  C.  376 — 109. 
McVey  v.  Dixon  [1909-10]  S.  C.  (Scot.)  544 

167. 

M'Vie  v.  Taylor  (1914)  2  Scot.  L.  T.  342,  51 

Scot.  L.  R.  435,  7  B.  W.  C.  C.  891 

— 189. 
McWeeny  v.  Standard  Boiler  &  Plate  Co. 

(1914)   210  Fed.  507,  4  N.  C.  C.  A. 

919,  affirmed  in  134  C.  C.  A.  169, 

218  Fed.  361 — 224. 
M'William  v.  Great  North  of  Scotland  R. 

Co.  [1914]  S.  C.  453,  (1914)  1  Scot. 

L.  T.  294,  51  Scot.  L.  R.  414,  7  B. 

W.  C.  C.  875 — 50. 
Maginn    v.    Carlingford    Lough    S.    S.    Co. 

(1909)    43   Ir.   Law   Times,   123 — 

105. 


Mahomed  v.  Maunsell  (1907;  C.  C.)  124  L. 

T.  Jo.    (Eng.)    153,  1  B.  W.  C.  C. 

269 — 101,  361. 
Main  Colliery  Co.  v.  Davies   [1900]   A.  C. 

(Eng.)  358,  69  L.  J.  Q.  B.  N.  S.  755, 

83  L.  T.  N.  S.  83,  16  Times  L.  R. 

460,  65  J.  P.  20 121,  123. 

Major  v.   South   Kirby   F.   &  H.   Collieries 

[1913]   2  K.  B.   (Eng.)    145,  82  L. 

J.  K.  B.  N.  S.  452,  108  L.  T.  N.  S. 

538,  29  Times  L.  R.  223,  57  Sol.  Jo. 

244,  [1913]  W.  N.  17,  [1913]  W.  C. 

6  Ins.  Rep.  305,  6  B.  W.  C.  C.  169, 
Ann.  Cas.  1914C,  81 — 160. 

Malcolm  v.  Bowhill  Coal  Co.   [1909-10]    S. 

C.  447,  47  Scot.  L.  R.  449,  3  B.  W. 

C.  C.  562 — 144,  170. 
v.  Bowhill  Coal  Co.  [1909]  S.  C.  (Scot.) 

426 — 177. 
v.  Spowart   [1913]   W.  C.  &  Ins.  Rep. 

523,  50   Scot.  L.  R.  823,   6  B.  W. 

C.  C.  856 — 165,  171. 
Malcom  v.  M'Millan  (1900)  2  Sc.  Sess.  Cas. 

5th  series,  525,  37  Scot.  L.  R.  383, 

7  Scot.  L.  T.  364 211. 

Mallinder  v.  Moores  [1912]  2  K.  B.   (Eng.) 

124,  81  L.  J.  K.  B.  N.  S.  714,  106 

L.  T.  N.  S.  487,  [1912]  W.  C.  Rep. 

257,  [1912]  W.  K  97,  5  B.  W.  C. 

C.  362 — 110. 
Malone  v.  Cayzer  (1908)  S.  C.  479,  1  B.  W. 

C.  C.  27,  45  Scot.  L.  R.  351 133, 

336,  339. 
Manchester  v.  Carlton  Iron  Co.   (1904)   68 

J.  P.    (Eng.)    209,  52  Week.  Rep. 

291,  89  L.  T.  N.  S.  730,  20  Times 

L.  R.  155,  6  W.  C.  C.  135 — 163. 
v.  Massachusetts,  139  U.  S.  240,  35  L. 

ed.  159,  11  Sup.  Ct.  Rep.  559,  

440. 
Manson  v.  Forth  &  C.  S.  S.  Co.  50  Scot. 

L.  R.  687,  [1913]  S.  C.  921,  [1913] 

W.  C.  &  Ins.  Rep.  399,  6  B.  W.  C. 

C.  830 41. 

Mapp  v.  Straker  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)  98,  7  B.  W.  C.  C.  18 — 111. 
Marble  v.  Ross,  124  Mass.  44 — 336. 
Marks  v.  Carne  [1909]  2  K.  B.  (Eng.)  516, 

78  L.  J.  K.  B.  N.  S.  853,  100  L.  T. 

N.  S.  950,  25  Times  L.  R.  620,  53 

Sol.  Jo.  561,  2  B.  W.  C.  C.  186 — 

95,  117. 
Marno    v.    Workman    (1899)    33    Ir.    Law 

Times,  183 — 85. 
Marriott  v.   Brett    (1911)    5   B.   W.   C.   C. 

(Eng.)   145 — 56. 
Marsh  v.  Boden   (1905)    7  W.  C.  C.   (Eng.) 

110 — 122. 
Marshall  v.  East  Holywell  Coal  Co.  (1905) 

93  L.  T.  N.  S.  (Eng.)  360,  21  Times 

L.  R.  494 — 36,  278,  290. 
v.  Orient  Steam  Nav.  Co.  [1910]  1  K. 

B.  79,  79  L.  J.  K.  B.  N.   S.  204, 

[1909]  W.  N.  225,  101  L.  T.  N.  S. 

584,  26  Times  L.  R.  70,  54  Sol.  Jo. 

50,  3  B.  W.  C.  C.  15 — 140,  387,  388. 
v.  Price   (1914)   30  Times  L.  R.   (Eng.) 

248 — 180. 
v.  Prince  [1914]   3  K.  B.   (Eng.)   1047, 

30  Times  L.  R.  654,  137  L.  T.  Jo. 

316,  58  Sol.  Jo.  721,  [1914]  W.  N. 

330,  7  B.  W.  C.  C.  755 172,  190. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


517 


Marshall    v.    Rudeforth    [1902]    2    K.    B. 
(j^ng.)    175,  71  L.  J.  K.  B.  N.  S. 

781,  66  J.  P.  627,  50  Week.  Rep. 

596,  86  L.  T.  N.  S.  752,  18  Times 

L.  R.  649 — 199. 
v.  Sheppard  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)  477,  6  B.  W.  C.  C.  571 — 68. 
v.  The  Wild  Rose  [1910]  A.  C.   (Eng.) 

486,  79  L.  J.  K.  B.  N.  S.  912,  103 

L.  T.  N.  S.  114,  26  Times  L.  R. 

608,  54  Sol.  Jo.  678,  3  B.  W.  C.  C. 

514,  11  Asp.  Mar.  L.  Cas.  409,  48 

Scot.  L.  R.  701 39,  69,  334. 

v.  The  Wild  Rose  [1909]  2  K.  B.  (Eng.) 

46,  78  L.  J.  K.  B.  N.  S.  536,  100  L. 

T.  N.  S.  739,  25  Times  L.  R.  452, 

52    Sol.    Jo.    448,   2   B.    W.    C.    C. 

76 — 39,  69. 
Martin  v.   Barnett    (1910)    3  B.  W.  C.   C. 

(Eng.)  146 — 137. 
v.  Fullerton  &  Co.   [1908]   S.  C.  1030, 

45  Scot.  L.  R.  812,  1  B.  W.  C.  C. 

168 — 51. 
v.  Hunter,  1  Wheat.  304,  4  L.  ed.  97 — 

439. 
v.  Lobibond  [1914]  2  K.  B.  (Eng.)  227, 

83  L.  J.  K.  B.  N.  S.  806,  110  L.  T. 

N.  S.  455,  [1914]  W.  N.  47,  [1914] 

W.  C.  &  Ins.  Rep.  76,  7  B.  W.  C.  C. 

243,  5   N.   C.   C.   A.   985 42,   59, 

314,  320. 

v.  Manchester  Corp.  [1912]  W.  C.  Rep. 

(Eng.)    289,   106  L.  T.  N.  S.  741, 

76  J.  P.  251,  28  Times  L.  R.  344, 

[1912]   W.  N.   105,  5  B.  W.  C.  C. 

259 36,  290. 

Maskery  v.  Lancashire  Shipping  Co.  (1914) 

7  B.  W.  C.  C.   (Eng.)  428 34,  38, 

43,  291,  293. 
Mason  v.  Dean  [1900]   1  Q.  B.   (Eng.)   770, 

69  L.  J.  Q.  B.  N.  S.  358,  65  J.  P. 

244,  48  Week.  Rep.  353,  82  L.  T. 
N.  S.  139,  16  Times  L.  R.  212 — 212. 

Massachusetts  Bonding  &  Ins.  Co.  v.  Pills- 
bury  (1915)  —  Cal.  — ,  151  Pac. 
419 — 258,  262. 

Masterman  v.  Ropner  (1909)  127  L.  T.  Jo. 
(Eng.)  8 — 188. 

Matecny  v.  Vierling  Steel  Works  (1914) 
187  111.  App.  448 — 253. 

Mathison  v.  Minneapolis  Street  R.  Co. 
(1914)  126  Minn.  286,  L.R.A.  — , 
— ,  148  N.  W.  71,  5  N.  C.  C.  A. 
871 — 401,  410,  412,  414,  415,  424, 
426. 

Matthews  v.  Baird  [1910]  S.  C.  689,  47  Scot. 

L.  R.  627 — 186. 

v.  Bedworth  Brick,  Tile  &  Timber  Co. 
(1899;  C.  C.)  106  L.  T.  Jo.  (Eng.) 
485.  1  W.  C.  C.  124 — 56. 

Maude  v.  Brook  [1900]  1  Q.  B.  575,  69  L.  J. 
Q.  B.  N.  S.  322,  64  J.  P.  181,  48 
Week.  Rep.  290,  82  L.  T.  N.  S. 
39,  16  Times  L.  R.  164 — 198,  [13] 
477. 

Maunder  v.  Hancock  (1914)  7  B.  W.  C.  C. 
(Eng.)  648 179. 

Maundrell  v.  Dunkerton  Collieries  Co.  (1910) 
4  B.  W.  C.  C.  (Eng.)  76 — 184. 

Maver  v.  Park  (1905)  8  Sc.  Sess.  Cas.  5th 
series  (Scot.)  250 — 85. 


Mawdsley  v.  West  Leigh  Colliery  Co.  (1911) 

5  B.  W.  C.  C.   (Eng.)   80 52. 

May  v.  Ison  [1914]  W.  C.  &  Ins.  Rep.  (Eng.) 

41,  110  L.  T.  N.  S.  525,  7  B.  W. 

C.  C.  148 — 58. 
Maziarski  v.  George  A.  Ohl  &  Co.    (1914) 

86  N.  J.  L.  692,  93  Atl.  110 — 257, 

264. 
Mead  v.   Lockhard    (1909)    2   B.   W.   C.   C 

(Eng.)    398 — 164. 

Meally  v.  M'Gowan  (1902)  4  Sc.  Sess.  Cas. 
5th  series,  883,  39  Scot.  L.  R.  662, 

10  Scot.  L.  T.  145 — 192. 
Medd   v.   Maclver    (1899)    15   Times   L.  R. 

(Eng.)  364,  1  W.  C.  C.  76 — 207. 
Medler  v.  Medler    (1908;   C.  C.)    124  L.  T. 

Jo.   (Eng.)   410,  1  B.  W.  C.  C.  332 

— 123,  370. 
Meese  v.  Northern  P.  R.  Co.   (1914)   127  C. 

C.  A.   622,  211   Fed.   254,  4  N.   C. 

C.  A.  819,  reversing  206  Fed.  222 

— 226,  360. 
Meier  v.  Dublin  [1912]  2  I.  R.  129,  [1913] 

W.  C.  &  Ins.  Rep.  30,  46  Ir.  Law 

Times,  233,  6  B.  W.  C.  C.  441 — 96. 
Meley's  Case  (1914)  219  Mass.  136,  106  N. 

E.  559 — 215,  257,  258,  266. 
Mellen   Lumber  Co.   v.  Industrial  Commis- 
sion   (1913)    154  Wis.  114,  142  K 

W.  187,  Ann.  Cas.  1915B,  997   (re- 
ported in  full  herein,  p.  374) 256, 

261,  377,  413. 
Mellor  v.  Tomkinson  [1899]  1  Q.  B.  (Eng.) 

374,  68  L.  J.  Q.  B.  N.   S.  214,  79 

L.   T.  N.   S.   715,   63   J.   P.   55,  47 

Week.   Rep.  240,   15   Times   L.  R. 

142 — 197. 
Melville  v.  M'Carthy  (Ir.)    [1913]  W.  C.  & 

Ins.  Rep.  353 — 91. 

Memphis  Cotton  Oil  Co.  v.  Tolbert   (1914) 
-  Tex.  Civ.   App.  — ,   171   S.  W. 

309,  7  N.  C.  C.  A.  547 — 220,  412, 

415,   428. 

Mensey  v.  White  [1900]  1  Q.  B.  481 — 286. 
Menzies  v.   M'Quibban    (1900)    2  Sc.   Sess. 

Cas.   5th   Series,   732,  37   Scot.  L, 

R.  526,  7  Scot.  L.  T.  432 45. 

Mercer   v.    Hilton    (1909)    3   B.   W.   C.   C. 

(Eng.)  6 — 80. 
Merrill  v.  Los  Angeles  Gas  &  Electric  Co. 

158  Cal.  503,  31  L.R.A.(N.S.)   559, 

139    Am.    St.    Rep.    134,    111    Pac. 

534 — 282. 
v.  Wilson  [1901]  1  K.  B.  (Eng.)  35,  70 

L.  J.  Q.  B.  N.  S.  97,  65  J.  P.  53, 

49  Week.  Rep.  161,  83  L.  T.  N.  S. 

490,   17   Times  L.  R.  49,  3  W.  C. 

C.  155 — 204,  209. 
Merry  v.  M'Gowan  (1914)  52  Scot.  L.  R.  30, 

8  B.  W.  C.  C.  344 109. 

Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S. 

59,  57  L.  ed.  417,  33  Sup.  Ct.  Rep. 

192,   Ann.   Cas.    1914C,   176 456, 

458,  463. 
Middlemiss   v.    Berwickshire    (1900)    2    Sc. 

Sess.  Cas.  5th  series,  392,  37  Scot. 

L.  R.  297,  7  Scot.  L.  T.  330 208. 

Midland    R.    Co.    v.    Sharpe    [1904]    A.   C. 

(Eng.)  349,  73  L.  J.  K.  B.  N.  S.  666, 

91  L.  T.  N.  S.  181,  20  Times  L.  R. 

546,  53  Week.  Rep.  114 — 159. 


518 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Mihm  v.  Hussey  (1915)  —  App.  Div.  — ,  155 

N.  Y.  Supp.  860 — 218. 
Mile  End  Guardians  v.  Hoare  [1903]  2  K. 

B.  (Eng.)  483,  72  L.  J.  K.  B.  N.  S. 
651,  67  J.  P.  395,  89  L.  T.  N.  S. 
276,  19  Times  L.  R.  606,  20  Cox,  C. 

C.  536,  5  W.  C.  C.  100 — 202. 
Miles  v.  Dawe   [1915]   W.  C.  &  Ins.  Rep. 

(Eng.)  29,  8  B.  W.  C.  C.  225 — 96. 
Millar  v.  Refuge  Assur.  Co.  [1912]  S.  C.  37, 

49  Scot.  L.  R.  67,  5  B.  W.  C.  C. 

522 — 41,  90. 
Miller    v.    North    British    Locomotive    Co. 

[1909]    S.   C.   698,   46   Scot.   L.   R. 

755,  2  B.  W.  C.  C.  80 68,  181. 

v.  Public  Service  R.  Co.  (1913)  84  N.  J. 

L.  174,  85  Atl.  1030 253. 

v.  Richarson    [1915]    3    K.    B.    (Eng.) 

76,  84  L.  J.  K.  B.  N.  S.  1366 — 88. 
v.  Sovereign  Camp,  W.  W.  140  Wis.  505, 

28  L.R.A.(N.S.)    178,  133  Am.  St. 

Rep.  1095,  122  N.  W.  1126 — 369. 
Milliken   v.   Travelers'  Ins.  Co.  216   Mass. 

293,  103  N.  E.  898  (reported  in  full 

herein,  p.  337) — 234,  339. 
Milliken's  Case.     See  Milliken  v.  Travelers' 

Ins.  Co. 
Milner  v    Great  Northern  R.  Co.   [1900]   1 

Q.  B.    (Eng.)    795,  82  L.  T.  N.  S. 

187,  69  L.  J.  Q.  B.  N.  S.  427,  64 

J.  P.  291,  48  Week.  Rep.  387,  16 

Times  L.  R.  249 — 194. 
Milwaukee  v.  Althoff    (1914)    156  Wis.  68, 

145  N.  W.  238,  4  N.  C.  C.  A.  110, 

(reported  in  full  herein,  p.  327) 

233,  235,  236,  274,  315,  332. 
v.  Industrial    Commission    (1915)     160 

Wis.  238,  151  N.  W.  247 — 227,  231, 

238,  266.  270,  294.  !~16]  480. 
v.  Miller   (1913)    154  Wis.  652,  144  N. 

W.  188,  4  N.  C.  C.  A.  149,  Ann.  Gas. 

1915B.  847    (reported  in  full  here- 
in, p.  [1]  465) — 215,  216,  221,  261, 

262,  341. 
v.  Ritzow,    158   Wis.    376,    149   N.   W. 

480 — 254. 
Milwaukee  Coke  &  Gas.  Co.  v.  Industrial 

Commission    (1915)   160  Wis.  247, 

151  N.  W.  245 — 233,  254.  267. 
Milwaukee  Western  Fuel  Co.  v.  Industrial 

Commission,  159  Wis.  635,  150  N. 

W.  998 — 222,  232,  244,  276,  341, 

356. 
Miner  v.  Franklin  County  Teleph.  Co.  83  Vt. 

311,  26  L.R.A.(N.S.)   1195,  75  Atl. 

653 — [20]  484. 
Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  v. 

Industrial  Commission    (1913)    153 

Wis.  552,  141  N.  W.  1119,  Ann.  Gas. 

1914D,  655,  3  N.  C.  C.  A.  707 — 247, 

341. 
Minnesota  Rate  Cases,  230  U.  S.  352,  57 

L    ed.  1511,  48  L.R.A.(N.S.)   1151, 

33   Sup.   Ct.   Rep.   729 — 406,   452, 

458. 

Mississippi    Valley    Trust    Co.    v.    Oregon- 
Washington  Timber  Co.  (1914)  213 

Fed.  988 — 265. 


Missouri,  K.  &  T.  R.  Co.  v.  Haber,  169  U.  S. 

613.  42  T,.  ed.  878,  18  Sup.  Ct.  Rep. 

488 453. 

v.  United  States,  231  U.  S.  112,  58  L. 

ed.  144,  34  Sup.  Ct.  Rep.  26 — 451. 
v.  Wulf,  226  U.  S.  570,  57  L.  ed.  355, 

33    ^np    Ct.   Ren.    135,   Ann.    Cas. 

1914B,  134 456. 

Mitchell  v.  Glamorgan  Coal  Co.   (1907)   23 

Times  L.  R.  588,  9  W.  C.  C.  16 

71,   301,   302 
v.  The    Saxon    (1912)    5   B.   W.   C.   C. 

(Eng.)  623 — 69. 
v.  Whitton     [1906-07]     S.    C.     (Scot.) 

1267 — 79,  357. 
Mitchinson    v.   D?v   Bros.    [1913]    1    K.  B. 

(Eng.)    603,   82  L.  J.  K.  B.  N.  S. 

421,  108  L.  T.  N.  S.  193,  29  Times 

L.  R.  267,  57  Sol.  Jo.  300.  [1913] 

W.  N.  36,  [1913]  W.  C.  &  Ins.  Rep. 

324,   6   B.   W.   C.   C.   190 64,   65, 

240,   310.   312 
Mockett  v.  Ashton  (1913)  84  N.  J.  L.  452, 

90  Atl.  127 — 263. 
Moffat  v.  Crow's  Nest  Pass  Coal  Co.  (1913) 

7  B.  W.  C.  C.  (B.  C.)  1040 — 84. 
Molamphy  v.  Sheridan  [1914]  W.  C.  &  Ins. 

Rep.  20.  47  Ir.  Law  Times.  250,  7 

B.  W.   C.   C.   957 — 148,  388. 
Molloy  v.  South  Wales  Anthracite  Colliery 

Co.   C1910)    4  B.  W.  C    C.    (Eng.) 

65 — 62. 
Monaghan  v.  United  Collieries  (1900)  3  Sc. 

Seas.  Cas.  5th  series,  149,  38  Scot. 

L.  R.  92,  8  Scot.  L.  T.  261 — 195. 
Mondou  v.  New  York,  N.  H.  &  H.  R.  Co. 

See    Second    Employers'    Liability 

Cases. 
Mooney  v.  Edinburgh  &  D.  Tramways  Co. 

(1901)   4  Sc.  Sess.  Cas.  5th  series, 

390.  38  Scot.  L.  R.  260,  9  Scot.  L. 

T.  366 194. 

Moore  v.  Crow's  Nest  Pass  Coal  Co.  (1910) 

15  B.  C.  391,  4  B.  W.  C.  C.  451 

178. 
v.  Lehigh    Valley    R.    Co.    (1915)    169 

App.   Div.    177,   154   N.   Y.    Supp. 

620 — 236,  347. 
v.  Manchester  Liners    [1909]    1  K.  B. 

417,  78  L.  J.  K.  B.  K  S.  463,  100 

L.  T.  N.   S.  164,  25  Times  L.  R. 

202 — 65,  66,  67,  237,  319,  [21]  485. 
v.  Manchester    Liners     [1910]     A.    C. 

(Eng.)   498,  79  L.  J.  K.  B.  N.  S. 

1175,  103  L.  T.  N.  S.  226,  26  Times 

L.  R.  618,  54  Sol.  Jo.  703,  3  B.  W. 

C.  C.  527 — 65,  66,  67,  237,  319. 
v.  Naval  Colliery  Co.   [1912]   1   K.  B. 

(Eng.)  28,  81  L.  J.  K.  B.  N.  S.  149, 

105  L.  T.  N.  S.  838,  5  B.  W.  C.  C. 

87,  [1912]  W.  C.  Rep.  81 — 90. 
v.  Pryde  [1913]  W.  C.  &  Tns.  Rep.  100, 

50  Scot.  L.  R.  302,  [1913]  S.  C. 

457,  [1913]  Scot.  L.  T.  49,  6  B.  W. 

C.  C.  384 — 143,  184,  185. 
Moreton  v.  Reeve  [1907]  2  K.  B.  (Eng.) 

401,  76  L.  J.  K.  B.  N.  S.  850,  97 

L.  T.  N.  S.  63,  9  W.  C.  C.  72 — 206. 
Morgan  v.  Cynon  Colliery  Co.  (1915)  8  B. 

W.  C.  C.  (Eng.)  499 — 68. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


519 


Morgan  v.  Dixon  [1912]  A.  C.  (Eng.)  74,  81 
L.  J.  P.  C.  N.  S.  57,  105  L.  T.  N. 
S.  678,  28  Times  L.  R.  64,  56  Sol. 
Jo.  88,  [1912]  S.  C.  (H.  L.)  1,  49 
Scot.  L.  R.  45,  5  B.  W.  C.  C.  184, 
[1911]  W.  N.  220,  [1912]  W.  C. 
Rep.  43 — 161. 

v.  The  Zenaida  (1909)  25  Times  L.  R. 
446,  2  B.  W.  C.  C.  19 38,  43,  229, 

280,  291. 

v.  Tydvil  Engineering  &  Ship  Repair- 
ing Co.  (1908)  98  L.  T.  N.  S. 
(Eng.)  762,  24  Times  L.  R.  403, 
1  B.  W  C.  C.  78 — 210. 

Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v.  Board 
of  Health,  118  U.  S.  455,  30  L.  ed. 
237,  6  Sup.  Ct.  Rep.  1114 406. 

Morris  v.  Chicago,  R.  I.  &  P.  R.  Co.  65 
Iowa,  727,  54  Am.  Rep.  39,  23  N. 

W.  143 434. 

v.  Lambeth  Borough  Council  (1905)  22 

Times   L.  R.    (Eng.)    22 59,  320. 

v.  Northern  Employer's  Mut.  Indemni- 
ty Co.  [1902]  2  K.  B.  (Eng.)  165, 
71  L.  J.  K.  B.  N.  S.  733,  86  L.  T. 
N.  S.  748,  66  J.  P.  644,  50  Week. 
Rep.  545,  18  Times  L.  R.  635,  4 
W.  C.  C.  38 — 99,  100. 
v.  Rowbotham  (1915)  8  B.  W.  C.  C. 

(Eng.)  157 51. 

v.  Turford  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  502,  6  B.  W.  C.  C.  606 — 39. 

Morrison  v.  Clyde  Navigation  [1909]  S.  C. 
59,  46  Scot.  L.  R.  40 46. 

Morter  v.  Great  Eastern  R.  Co.  (1908;  C. 
C.)  126  L.  T.  Jo.  (Eng.)  171,  2 
B.  W.  C.  C.  480 — 94,  128. 

Mortimer  v.  Secretan  [1909]  2  K.  B.  (Eng.) 

77,  78  L.  J.  K.  B.  N.  S.  521,  100 

L.  T.  N.  S.  721 — 189. 

v.  Wisker  [1914]  3  K.  B.   (Eng.)   699, 

30  Times  L.  R.  592.  [1914]  W.  N. 

281,  137  L.  T.  Jo.  211,  83  L.  J.  K. 
B.    N.    S.    1245,    111    L.    T.   N.   S. 
732,  7  B.  W.  C.  C.  494 — 104. 

Morton  v.  Woodward  [1902]  2  K.  B.  (Eng.) 
276,  71  L.  J.  K.  B.  N.  S.  736,  66 
J.  P.  660,  51  Week.  Rep.  54,  86 
L.  T.  N.  S.  878,  4  W.  C.  C.  143 — 
166. 

Moss  v.  Akers  (1911)  4  B.  W.  C.  C.  (Eng.) 

294 141,  301,  388. 

v.  Great  Eastern   R.   Co.    [1909]    2  K. 

B.  (Eng.)  274,  78  L.  J.  K.  B.  N.  S. 
1048,    100    L.    T.    N.    S.    747,    25 
Times  L.  R.  466,  2  B.  W.  C.  C. 
168 94,  128,  181. 

Mountain  v.  Parr  [1899]  1  Q.  B.  (Eng.) 
805,  68  L.  J.  Q.  B.  N.  S.  447,  47 
Week.  Rep.  353,  80  L.  T.  N.  S.  342, 
15  Times  L.  R.  262 177. 

Mowlem  v.  Dunne  [1912]  2  K.  B.  (Eng.) 
136,  81  L.  J.  K.  B.  N.  S.  777,  106 
L.  T.  N.  S.  611,  [1912]  W.  N.  98, 
[1912]  W.  C.  Rep.  298,  5  B.  W. 

C.  C.  382 — 188. 

Moynes  v.  Dixon  (1905)  7  Sc.  Sess.  Cas. 
5th  series  (Scot.)  386 — 126. 

Mulholland  v.  Whitehaven  Colliery  Co. 
[1910]  2  K.  B.  (Eng.)  278,  79 
L.  J.  K.  B.  N.  S.  987,  26  Times 
L.  R.  462,  102  L.  T.  N.  S.  663,  3 
B.  W.  C.  C.  317 — 172,  177. 


Mullen  v.  Stewart  [1908]  S.  C.  (Scot.)  991, 

I  B.  W.  C.  C.  204 47,  57. 

Muller  v.  Batavier  Line  (1909;  C.  C.)   126 

L.   T.   Jo.    (Eng.)    96,  2   B.   W.  C. 

C.  495 174. 

Mulligan  v.  Dick  (1904)  6  Sc.  Sess.  Cas. 
5th  series,  126,  41  Scot.  L.  R.  77, 

II  Scot.  L.  T.  433 — 101,  361. 
Mulrooney  v.  Todd  [1909]   1  K.  B.   (Eng.) 

165,  78  L.  J.  K.  B.  N.  S.  145,  100 

L.   T.  N.   S.   99,   73  J.   P.   73,  25 

Times   L.   R.    103,   53    Sol.   Jo.   99 

[1908]   W.  N.  242 97. 

Mulvey  v.  Boston,  197  Mass.  178,  83  N.  E. 

402,  14  Ann.  Cas.  349 — 279. 
Murnin  v.  Calderwood   (1899)    1   Sc.  Sess. 

Cas.   5th   series,   862,   36    Scot.   L. 

R.  648,  7  Scot.  L.  T.  16 — 197. 
Murphy    v.    Berwick    (1909)    43    Ir.    Law 

Times,  126 65,  310. 

v.  Cooney  [1914]  2  I.  R.  76  [1914]  W. 

C.    &    Ins.    Rep.    44,    48    Ir.    Law 

Times,   13,   7   B.   W.   C.  C.  962 

63,  351. 

v.  Enniscorthy  Guardians  [1908]  2  I. 
R.  609,  42  Ir.  Law  Times,  246,  2 

B.  W.  C.  C.  291 — 114, 

v.  O'Donnell     (1906)     54    Week.    Rep. 

(Eng.)    149,  8  W.  C.  C.   70 209. 

v.  Shirebrook  Colliery  [1913]  W.  C.  & 

Ins.  Rep.    (Eng.)    184,  6  B.  W.  C. 

C.  237 — 88. 

Murphy's  Case   (1914)    218  Mass.  278,  105 

N.  E.  635,  5  N.  C.  C.  A.  716 — 254. 

Murray,  Re,  Ops.  Sol.  Dept.  Commerce  & 

Labor,  p.  201 — 298. 

v.  Allen  Bros  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)  193,  6  B.  W.  C.  C.  215 — 51. 

v.  Denholm  [1911]  S.  C.  1087,  48  Scot. 

L.  R.  896,  5  B.  W.  C.  C.  496 39, 

64,  309. 

v.  Gourlay   [1908]    S.  C.  769,  45  Scot. 

L.  R.  577 — 134. 

v.  North  British  R.  Co.  (1904)  6  Sc. 
Sess.  Cas.  5th  series,  540,  41  Scot. 
L.  R.  383,  11  Scot.  L.  T.  746 — 101, 
361. 

Mutter  v.  Thomson  [1913]  W.  C.  &  Ins. 
Rep.  241,  [1913]  S.  C.  619,  50 
Scot.  L.  R.  447,  6  B.  W.  C.  C.  424 
—133  292  303 

Muzik  v.  Erie  R.  Co!  (1914)  85  N.  J.  L.  129, 
89  Atl.  248,  4  N.  C.  C.  A.  732,  af- 
firmed in  86  N.  J.  L.  695,  92  Atl. 
1087 242,  250. 


N 


Nash  v.  Hollinshead  [1901]  1  K.  B. 

700,  70  L.  J.  K.  B.  N.  S.  571,  75 

J.  P.  357,  49  Week.  Rep.  424,  84  L. 

T.  N.  S.  483,  17  Times  L.  R.  352 

— 202. 
v.  The  Rangatira  [1914]  3  K.  B.  (Eng.) 

978,   83   L.   J.   K.   B.  N.    S.   1496, 

[1914]  W.  N.  291,  111  L.  T.  N.  S. 

704,  58  Sol.  Jo.  705,  7  B.  W.  C.  C. 

590 — 63,  351. 
Nashville,  C.  &  St.  L.  R.  Co.  v.  Alabama, 

128    U.    S.    96,    32    L.    ed.    352,    2 

Inters.  Com.  Rep.  238,  9  Sup.  Ct. 

Rep.  28 452.    • 


520 


TABLE  OF  CASES  REPORTED  AND  CITED. 


National  Teleph.  Co.  v.  Smith  [1909]  S.  C. 

1363,  46  Scot.  L.  R.  988,  2  B.  W.  C. 

C.  417 — 173. 
Naylor  v.  Musgrave  Spinning  Co.  (1911)  4 

B.  W.  C.  C.   (Eng.)   286 56. 

Neagle  v.  Nixon's  Nav.  Co.  [1904]  1  K.  B. 

(Eng.)    339,  73  L.  J.  K.  B.  N.   S. 

165,  68  J.  P.  297,  52  Week.  Rep. 

356,  90  L.  T.  N.  S.  49,  20  Times 

L.  R.  160 161. 

Neale  v. '  Electric  &  Ordinance  Accessories 

Co.  [1906]  2  K.  B.   (Eng.)   558,  75 

L.  J.  K.  B.  N.  S.  974,  95  L.  T.  N.  S. 

592,  22   Times  L.  R.  732 — 82. 
Nekoosa-Edwards  Paper   Co.  v.  Industrial 

Commission   (1913)    154  Wis    105, 

141  N.  W.  1013,  Ann.  Cas.  1915B, 

995    (reported    in    full    herein,    p. 

348) — 238,  244,  341,  351,  357. 
Nelson  v.  Allan  Bros.  [1913]  W.  C.  &  Ins. 

Rep.  532,  50  Scot.  L.  R.  820,  6  B. 

W.  C.  C.  853 179. 

v.  Belfast    Corp.    (1908)    42    Ir.    Law 

Times  223,  1  B.  W.  C.  C.  158 — 58. 
v.  Kerr    (1901)    3    Sc.    Sess.    Cas.    5th 

series,  893,  38  Scot.  L.  R.  645,  9 

Scot.  L.  T.  83 — 156,  159. 
v.  Summerlee   Iron    Co.    [1910]    S.   C. 

360,  47  Scot.  L.  R.  344 — 166. 
Nelson's  Case  (1914)  217  Mass.  467,  105  N. 

E.  357,  5  N.  C.  C.  A.  694 — 251, 

370. 
Nettleingham    v.    Powell    [1913]    3    K.    B. 

(Eng.)    209,  82  L.  J.  K.  B.  N.  S. 

911,  108  L.  T.  N.  S.  912,  29  Times 

L.  R.  578,  57  Sol.  Jo.  593,   [1913] 

W.  N.   182,    [1913]   W.  C.  &  Ins. 

Rep.  424,  6  B.  W.  C.  C.  479,  aff'g 

the   divisional   court    [1913]    1   K. 

B.  (Eng.)   113,  [1912]  W.  N.  278, 

82  L.  J.  K.  B.  N.  S.  54,  108  L.  T. 

N.   S.   219,   29   Times  L.  R.  88,   6 

B.  W.  C.  C.  262 — 103,  362. 
Neville  v.  Kelly  Bros.   (1907)   13  B.  C.  125 

30. 

New    Amsterdam    Casualty    Co.    v.    Olcott 

(1915)   165  App.  Div.  603,  150  N. 

Y.  Supp.  772 — 265. 
Newark  Paving  Co.  v.  Klotz   (1914)   85  N. 

J.  L.  432,  91  Atl.  91,  affirmed  in 

(1914)    86   N.   J.   L.    690,   92   Atl. 

1086 226,   251,  316,  361. 

Newcomb  v.  Albertson   (1913)   85  N.  J.  L. 

435,  89  Atl.  928,  4  N.  C.  C.  A.  783 

— 230,  292. 
Newhouse  v.  Johnson  (1911)  5  B.  W.  C.  C. 

(Eng.)   137 — 145. 
Newman  v.  Newman  (1915)  —  App.  Div.  — , 

155  N.  Y.  Supp.  665 — 234,  314. 
New  Monckton  Collieries  v.  Keeling  [1911] 

A.  C.    (Eng.)    648,  80  L.  J.  K.  B. 

N.  S.  1205,  105  L.  T.  N.  S.  337,  27 

Times  L.  R.  551,  55  Sol.  Jo.  687, 

[1911]  W.  N.  176,  4  B.  W.  C.  C. 

332 — 122,  124,  370. 
v.  Toone    [1913]    W.    C.    &    Ins.   Rep. 

(Eng.)    425,  109   L.  T.   N.  S.  374. 

57  Sol.  Jo.  753,  6  B.  W.  C.  C.  660 

— 171. 


Newson  v.  Burstall  (1915)  84  L.  J.  K.  B. 
N.  S.  (Eng.)  535,  112  L.  T.  N.  S. 
792,  50  L.  J.  54,  [1915]  W.  C.  & 
Ins.  Rep.  16,  59  Sol.  Jo.  204,  8 

B.  W.  C.  C.  21 45. 

New  York,  C.  &  St.  L.  R.  Co.  v.  Niebel, 

131  C.  C.  A.  248,  214  Fed.  952 

459. 
New  York,  P.  &  N.  R.  Co.  v.  Waldron,  116 

Md.  441,   39   L.R.A.(N.S.)    502,  82 

Atl.   709 — 279. 
New   York   Shipbuilding   Co.  v.   Buchanan 

(1913)    84   N.   J.   L.    543,   87   Atl. 

86 — 263. 
Nicholls  v.  Briton  Ferry  U.  D.  C.   [1915] 

W.  C.  &  Ins.  Rep.  (Eng.)  14,  8  B. 

W.  C.  C.  42 — 88. 
Nichols's  Case   (1914)   217  Mass.  3,  104  N. 

E.  566,  Ann.  Cas.  1915C,  862,  4  N. 

C.  C.  A.  546 — 254. 

Nicholson  v.  Piper  [1907]  A.  C.  (Eng.)  215, 

76  L.  J.  K.  B.  N.  S.  856,  97  L.  T.  N. 

S.  119,  23  Times  L.  R.  620 — 167, 

169. 
v.  Thomas  (1910)  3  B.  W.  C.  C.  (Eng.) 

452 — 183. 
Nickerson's  Case  (1914)  218  Mass.  158,  105 

N.  W.  604,  5  N.  C.  C.  A.  645 243, 

244,  266,  355-357. 
Niddrie  &  B.  Coal  Co.  v.  McKay  (1903)  5 

Sc.  Sess.  Cas.  5th  series,  1121,  40 

Scot.  L.  R.  798,  11  Scot.  L.  T.  275 

— 161,  190. 
Nimms  v.  Fisher   [1906-07]    S.  C.    (Scot.) 

890 — 144. 
Nisbet  v.  Rayne  [1910]  2  K.  B.  (Eng.)  689, 

80  L.  J.  K.  B.  N.  S.  84,  103  L.  T. 

N.  S.  178,  26  Times  L.  R.  632,  54 

Sol.  Jo.  719,  3  B.  W.  C.  C.  507, 

3  N.  C.  C.  A.  368 38,  64,  240,  306, 

307,  309. 
Nitram    Co.    v.    Court    of    Common    Pleas 

(1913)    84   N.   J.   L.   243,   86   Atl. 

435 — 257. 
Noble  State  Bank  v.  Haskell    (1911)    219 

U.  S.  104,  55  L.  ed.  112,  32  L.R.A. 

(N.S.)   1062,  31  Sup.  Ct.  Rep.  186, 

Ann.  Cas.  1912A,  487 408,  416. 

Noden  v.  Galloways  [1912]  1  K.  B.  (Eng.) 

46  [1911]  W.  N.  192,  81  L.  J.  K.  B. 

N.  S.  28,  105  L.  T.  N.  S.  567,  28 

Times   L.   R.    5,    55    Sol.   Jo.   838, 

[1911]  W.  C.  Rep.  63,  5  B.  W.  C. 

C.  7 — 68. 
Nolan  v.  Porter  (1909)  2  B.  W.  C.  C.  (Eng.) 

106 60,  331. 

Nole  v.  Wadworth  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)  160,  6  B.  W.  C.  C.  129 — 52. 
Norman  v.  Walder   [1904]   2  K.  B.   (Eng.) 

27,  73   L.  J.  K.  B.  N.   S.  461,  68 

J.  P.  401,  52  Week.  Rep.  402,  90 

L.  T.  N.   S.  531,  20   Times  L.  R. 

427,  6  W.  C.  C.  124 145,  378. 

North  American   Life   &  Acci.  Ins.  Co.  v. 

Burroughs,  69  Pa.  43,  8  Am.  Rep. 

212 — 298. 
North  Carolina  R.  Co.  v.  Zachary,  232  U. 

S.  248,  58  L.  ed.  591,  34  Sup.  Ct. 

Rep.  305,  Ann.  Cas.  1914C,  159 — 

457. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


521 


Northeastern  Marine  Engineering  Co.  v. 
Davison  [1915]  W.  C.  &  Ins.  Rep. 
(Eng.)  65,  8  B.  W.  C.  C.  248 — 179. 

Northern  P.  R.  Co.  v.  Babcock,  154  U.  S. 
190,  38  L.  ed.  958,  14  Sup.  Ct.  Rep. 

978 433. 

v.  Washington,  222  U.  S.  370,  56  L.  ed. 
237,  32  Sup.  Ct.  Rep.  160 453. 

Northwestern  Fuel  Co.  v.  Leipus  (1915)  — 
Wis.  — ,  152  N.  W.  856— -258. 

Northwestern  Iron  Co.  v.  Industrial  Com- 
mission (1913)  154  Wis.  97,  142  N. 
W.  271,  Ann.  Cas.  1915B,  877  (re- 
ported in  full  herein,  p.  366) — 250, 
251,  275,  341. 

v.  Industrial    Commission    (1915)    160 
Wis.  633,  152  N.  W.  416 — 236. 

Novico  v.  E.  B.  Eddy  Co.  (1911)  12  Quebec 
Pr.  Rep.  319 — 117. 


O'Brien  v.  Dobbie   [1905]    1  K.  B.   (Eng.) 

346 — 199. 
v.  Star  Line  [1908]  S.  C.   (Scot.)  1258 

— 67. 
v.  Star  Line  (1908)  45  Scot.  L.  R.  935, 

1  B.  W.  C.  C.  177 — 63,  351. 
O'Connell  v.  Simms  Magneto  Co.  (1913)  85 

N.  J.  L.  64,  89  Atl.  922,  4  N.  C.  C. 

A.  590 — 264. 
O'Donnell  v.  Clare  County  Council   (1913) 

W.  C.  &  Ins.  Rep.  273,  47  Ir.  Law 

Times  41,  6  B.  W.  C.  C.  457 — 119, 

364. 
O'Donovan  v.  Cameron  [1901]  2  I.  R.  633, 

34  Ir.  Law  Times,  169 136. 

Ogden  v.  Aspinwall,  220  Mass.  100,  107  N. 

E.  448 336. 

v.  Saunders,   12  Wheat.  213,  6  L.  ed. 

606 459. 

v.  South    Kirky,    F.    &    H.    Collieries 

[1913]   W.  C.  &  Ins.  Rep.    (Eng.) 

463,  6  B.  W.  C.  C.  573 139. 

O'Hanlon  v.  Dundalk  &  N.  Steam  Packet 

Co.  (1899)  33  Ir.  Law  Times,  36 — 

121 
O'Hara  v.   Cadzow  Coal  Co.    (1903)    5   Sc. 

Sess.  Cas.    (Scot.)    5th  series,  439 

— 77,  357. 
v.  Hayes  (1910)  41  Ir.  Law  Times,  71, 

3  B.  W.  C.  C.  586 33,  294. 

O'Keefe  v.  Lovatt   (1902)   18  Times  L.  R. 

(Eng.)    57,  4  W.  C.  C.  109 — 135, 

163. 

Okrzsezs   v.  Lehigh   Valley  R.   Co.    (1915) 
-  App.  Div.  — ,  155  N.  Y.  Supp. 

919 464. 

Old  Dominion  S.   S.   Co.  v.   Gilmore.     See 

Hamilton,  The. 
Oldenberg  v.  Industrial  Commission  (1915) 

159  Wis.  333,  150  N.  W.  444 260. 

Oliver    v.    Nautilus    Steam    Shipping    Co. 

[1903]   2  K.  B.   (Eng.)    639,  72  L. 

J.  K.  B.  N.  S.  857,  89  L.  T.  N.  S. 

318,  19  Times  L.  R.  697,  52  Week. 

Rep.  200,  9  Asp.  Mar.  L.  Cas.  436 

—27    102   361 
Olson  v.  The  Dorset   (1913)   6  B.  W.  C.  C. 

(Eng.)    658 68,  292. 


O'Neil  v.  West  Side  Storage  Warehouse  Co. 

(1915)  —  App.  Div.  — ,  155  N.  Y. 

Supp.  912 — 258. 
O'Neill  v.  Anglo-American  Oil  Co.    (1909) 

2  B.  W.  C.  C.  (Eng.)  434 189. 

v.  Bansha   Co-op.  Agri.  &   Dairy  Soc. 

[1910]    2    I.    R.    324,   44    Ir.   Law 

Times,  52 — 136. 
v.  Brown    &    Co.     [1913]     S.    C.    653, 

[1913]  W.  C.  &  Ins.  Rep.  235,  50 

Scot.  L.  R.  450,  6  B.  W.  C.  C.  428 

140,  388. 

v.  Motherwell  [1906-07]   S.  C.   (Scot.) 

1076 — 93. 
v.  Ropner    (1908)    42   Ir.   Law    Times, 

3.  2  B.  W.  C.  C.  334 — 140,  389. 
Opinion  of  Justices   (1911)   209  Mass.  607, 

96  N.  E.  308,  1  N.  C.  C.  A.  557 

308,  401,  413,  414,  424,  431. 
O'Reilly  v.  New  York  &  N.  E.  R.  Co.  16  R. 

I.  388,  5  L.R.A.  364,  6  L.R.A.  719, 

17  Atl.  171,  19  Atl.  244 — 430. 
Orrell  Colliery  Co.  v.  Schofield  [1909]  A.  C. 

(Eng.)    433,  78  L.  J.  K.  B.  N.  S. 

677,  100  L.  T.  N.  S.  786,  25  Times 

L.   R.   569,   53   Sol.   Jo.   518,   aff'g 

[1908]  W.  N.  243,  25  Times  L.  R. 

106,  53   Sol.  Jo.  117 124. 

Osborn  v.  Vickers   [1900]   2  Q.  B.   (Eng.) 

91,   69   L.  J.   Q.-  B.   N.   S.   606,   82 

L.  T.  N.  S.  491,  16  Times  L.  R. 

333 — 160. 
Osborne  v.  Barclay  [1901]  A.  C.  (Eng.)  269, 

85  L.  T.  N.  S.  286 191. 

v.  Tralee  &  D.  R.  Co.   [1913]  2  I.  R. 

133,  47  Ir.  Law  Times,  141,  [1913] 

W.  C.  &  Ins.  Rep.  391,  6  B.  W.  C. 

C.  913 — 143. 
Osmond  v.  Campbell  [1905]  2  K.  B.  (Eng.) 

852,  75  L.  J.  K.  B.   N.  S.   1,  54 

Week.  Rep.   117,   93   L.   T.   N.   S. 

724,  22  Times  L.  R.  4 — 134,  136. 
O'Toole  v.  Brandram-Henderson   (19]  5)   48 

N.  S.  293 — 194. 
Owen  v.  Clark   (1901;   C.  C.)   3  W.  C.  C. 

(Eng.)  170 213. 

Owens  v.  Campbell  [1904]  2  K.  B.   (Eng.) 

60,  73  L.  J.  K.  B.  N.  S.  634,  68  J. 

P.  410,  52  Week.  Rep.  481,  90  L. 

T.  N.  S.  811,  20  Times  L.  R.  459, 

6  W.  C.  C.  54 206. 


Pacific    Coast    Casualty    Co.    v.    Pillsbury 

(1915)   —  Cal.  — ,  153  Pac.  24 — 

238. 
v.  Pillsbury  (1915)  —  Cal.  — ,  151  Pac. 

658 — 269. 
Pacific  Steam  Nav.  Co.  v.  Pugh  (1907)  23 

Times  L.  R.  (Eng.)  622,  9  W.  C.  C. 

39 — 212. 
Paddington  v.  Stack  (1909)  2  B.  W.  C.  C. 

(Eng.)  402 140. 

Paddington     Borough     Counsel     v.     Stack 

(1909)  2  B.  W.  C.  C.  (Eng.)  402 — 

388. 
Page  v.  Burtwell  [1908]  2  K.  B.  (Eng.)  758, 

77  L.  J.  K.  B.  N.  S.  1061,  99  L. 

T.  N.  S.  542,  125  L.  T.  Jo.  336,  1 

B.  W.  C.  C.  267 — 101,  103,  361. 


522 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Panagotis  v.  The  Pontiac   [1912]   1  K.  B. 

(Eng.)  [1911]  W.  N.  221,  28  Times 

L.  R.  63,  56  Sol.  Jo.  71 — 112. 
Panasuk's  Case  (1914)  217  Mass.  589,  105 

N.  E.  368,  5  N.  C.  C.  A.  688 — 262. 
Park  v.  Coltness  Iron  Co.  (1913)   50  Scot. 

L.  R.  926,  2  Scot.  L.  T.  232,  6  B. 

W.  C.  C.  892 — 191. 
Parker  v.  Dixon  (1902)  4  Sc.  Sess.  Cas.  5th 

series,  1147,  39  Scot.  L.  R.  663, 

10  Scot.  L.  T.  153 — 143. 
v.  Hambrook  [1912]  W.  N.  (Eng.)  205, 

107  L.  T.  N.  S.  249,  56  Sol.  Jo. 

750,  [1912]  W.  C.  Rep.  369,  5  B.  W. 

C.  C.  608,  Ann.  Cas.  1913C,  1 — 55, 

[13]  477. 
v.  Pout  (1911)  105  L.  T.  N.  S.  (Eng.) 

493 44. 

v.  The  Black  Rock  [1914]  2  K.  B. 

(Eng.)  39,  83  L.  J.  K.  B.  N.  S.  421, 

110  L.  T.  N.  S.  520,  30  Times  L. 

R.  271,  58  Sol.  Jo.  285,  [1914]  W. 

N.  43,  [1914]  W.  C.  &  Ins.  Rep. 

117,  7  B.  W.  C.  C.  152,  sustained 

by  the  House  of  Lords,  [1915]  A. 

C.  (Eng.)  725,  31  Times  L.  R.  432, 

[1915]  W.  N.  204 67. 

Parro  v.  New  York,  S.  &  W.  R.  Co.  (1913) 

85  N.  J.  L.  155,  88  Atl.  825,  4  N. 

C.  C.  A.  680 — 272. 
Parry  v.  Rhymney  Iron  &  Coal  Co.  (1912) 

5  B.  W.  C.  C.  (Eng.)  632 — 162. 
Paterson  v.  Lockhart  (1906)  7  Sc.  Sess.  Cas. 

5th  series,  954,  42  Scot.  L.  R.  24 

— 119,  120. 
v.  Moore  [1910]  S.  C.  29,  47  Scot.  L. 

R.  30,  3  B.  W.  C.  C.  541 — 378,  144. 
Paton  v.  Dixon   [1913]  W.  C.  &  Ins.  Rep. 

517,  50  Scot.  L.  R.  866,  6  B.  W.  C. 

C.  882,  [1913]  S.  C.  1120 36,  290. 

Patry  v.  Chicago  &  W.  I.  R.  Co.  265  111. 

310,  106  N.  E.  843 459. 

Pattinson  v.  Stevenson   (1900;   C.  C.)   109 

L.  T.  Jo.   (Eng.)   106,  2  W.  C.  C. 

156 — 173. 
Pattison  v.  White  (1904)  6  W.  C.  C.  (Eng.) 

61,  20  Times  L.  R.  775 193,  196. 

Payne   v.   Clifton    (1910)    3   B.   W.   C.   C. 

(Eng.)  439 — 179. 

v.  Fortescue  [1912]  3  K.  B.  (Eng.)  346, 
81  L.  J.  K.  B.  N.  S.  1191,  107  L. 
T.  N.  S.  136,  57  Sol.  Jo.  81,  [1912] 
W.  N.  216,  5  B.  W.  C.  C.  634 — 80. 

Peacock  v.  Niddric  &  B.  Coal  Co.  (1902)  4 
Sc.  Sess.  Cas.  5th  series,  443,  39 
Scot.  L.  R.  317,  9  Scot.  L.  T.  379 
— 157. 

Pearce  v.  London  &  S.  W.  R.  Co.   (1899) 

2  W.  C.  C.  152 — 317. 
v.  London  &  S.  W.  R.  Co.  [1900]  2  Q. 

B.  (Eng.)   100,  69  L.  J.  Q.  B.  N.  S. 

683,  48  Week.  Rep.  599,  82  L.  T. 

N.  S.  473,  16  Times  L.  R.  336 — 97. 
Pears  v.  Gibbons  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)   469,  6  B.  W.  C.  C.  722 — 

109,  115. 


Pedersen  v.  Delaware,  L.  &  W.  R.  Co.  229 

U.  S.  146,  57  L.  ed.  1125,  33  Sup. 

Ct.  Rep.  648,  Ann.  Cas.  1914C,  153, 

3   N.   C.  C.   A.   779 451,  456. 

Peel  v.  Laurence  [1912]  W.  C.  Rep.  (Eng.) 

141,  106  L.  T.  N.  S.  482,  28  Times 

L.  R.  318,  5  B.  W.  C.  C.  274 42. 

Peers  v.  Astley  &  T.  Collieries  Co.  (1901; 

C.  C.)  3  W.  C.  C.  (Eng.)  185 — 156. 
Peet  v.  Mills  (1913)  76  Wash.  437,  136  Pac. 

685,  Ann.  Cas.  1915D,  154,  4  N.  C. 

C.  A.  786  (reported  in  full  herein, 

p.   358) — 215,  226,  297,  360,  412. 
Peggie  v.  Wemyss  Coal  Co.  [1909-10]  S.  C. 

93,  47  Scot.  L.  R.  149 — 86. 
Peill  v.  Payne  (1915)  8  B.  W.  C.  C.  (Eng.) 

Ill — 190. 
Pendar  v.  H.  &  B.  American  Mach.  Co.  35  R. 

I.  321,  87  Atl.  1,  4  N.  C.  C.  A.  600 

(reported  in  full  herein,  p.  428)— 

439,  443. 
Penman  v.  Smith's  Dry  Docks  Co.  (1915)  8 

B.  W.  C.  C.  (Eng.)  487 — 141. 
Penn   v.   Spiers   &   Pond    [1908]    1   K.   B. 

(Eng.)  766,  77  L.  J.  K.  B.  N.  S.  542, 

98  L.  T.  N.  S.  541,  24  Time?  L.  R. 

354,  52  Sol.  Jo.  280,  1  B.  W.  C.  C. 

401,  14  Ann.  Cas.   335 159,  374. 

Pensabene  v.  S.  &  J.  Auditore  Co.   (1913) 

155  App.  Div.  368,  140  N.  Y.  Supp. 

266 443. 

Pepper  v.  Sayer  [1914]  3  K.  B.  (Eng.)  994, 

30  Times  L.  R.  621,  [1914]  W.  C. 

&  Ins.  Rep.  423,  83  L.  J.  K.  B.  N. 

S.  1756,  111  L.  T.  N.  S.  708,  58 

Sol.  Jo.  669,  [1914]  W.  N.  291,  7 

B.  W.  C.  C.  616 — 51. 
Percival  v.  Garner   [1900]   2  Q.  B.   (Eng.) 

406,  69  L.  J.  Q.  B.  N.  S.  824,  64 

J.  P.  500,  16  Times  L.  R.  396 213. 

Perry   v.    Anglo-American    Decorating    Co. 

(1910)  3  B.  W.  C.  C.  (Eng.)  310 — 

48. 
v.  Baker    (1901;    C.    C.)    3   W.   C.   C. 

(Eng.)  29 — 31,  32,  303. 
v.  Clements    (1901)    17    Times    L.    R. 

(Eng.)   525,  49  Week.  Rep.  669 

84. 
v.  Ocean  Coal  Co.  [1912]  W.  C.  Rep. 

(Eng.)  212,  106  L.  T.  N.  S.  713, 

5  B.  W.  C.  C.  421 40. 

v.  Wright  [1908]   1  K.  B.   (Eng.)  441, 

77  L.  J.  K.  B.  N.  S.  236,  98  L.  T.  N. 

S.  327,  24  Times  L.  R.  186,  1  B. 

W.  C.   C.  351 — 149-151,   153-155, 

373. 
Peters  v.  The  Argol   (1912)   5  B.  W.  C.  C. 

(Eng.)  414 — 181. 
Pethick,  Re  [1915]  1  Ch.  (Eng.)  26,  84  L. 

J.  Ch.  N.  S.  285,  112  L.  T.  N.  S. 

212,   [1915]   W.  C.  &  Ins.  Rep.  5, 

[1915]  H.  B.  R.  59,   [1914]   W.  N. 

403,  59  Sol.  Jo.  74 99. 

Petrie,  Re  (1915)  215  N.  Y.  335,  109  N.  E. 

549 — 215,  258. 
Petschett  v.  Preis   (1915)   31  Times  L.  R. 

(Eng.)    156,    [1915]    W.  C.   &   Ins. 

Rep.   11,   8   B.  W.   C.   C.  44 — 31, 

36,  86,  290. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


523 


Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert, 

224   U.   S.  603,  56  L.   ed.  911,  32 

Sup.  Ct.  Rep.  589,  1  N.  C.  C.  A. 

892 456,   460. 

Phillips  v.  Vickers  [1912]  1  K.  B.  (Eng.)  16, 

81  L.  J.  K.  B.  N.  S.  123,  105  L. 

T.   N.   S.  564,  5  B.  W.  C.  C.  23, 

[1911]  W.  N.  193,  [1912]  W.  C. 

Rep.  71 — 184. 
v.  Williams  (1911)  4  B.  W.  C.  C. 

(Eng.)   143 — 47. 
Piatt  v.  Swift  &  Co.   (1915)  188  Mo.  App. 

584,  176  S.  W.  434 272. 

Pierce  v.  Providence  Clothing  &  Supply  Co. 

[1911]   1  K.  B.   (Eng.)   997,  80  L. 

J.  K.  B.  N.  S.  831,  104  L.  T.  N. 

S.  473,  27  Times  L.  R.  299,  55  Sol. 

Jo.  363,  4  B.  W.  C.  C.  242 42,  48, 

314. 
Pigeon's  Case  (1913)  216  Mass.  51,  102  N. 

E.   932,   Ann.   Cas.   1915A.   737,  4 

N.   C.   C.   A.   516 — 234,  245,  267, 

268,  270,  271,  384. 
Pimm  v.  Clement  Talbot   [1914]   W.  C.  & 

Ins.  Rep.  (Eng.)  350,  7  B.  W.  C.  C. 

565 — 87,  88. 
Pimms  v.  Pearson   (1909;  C.  C.)  126  L.  T. 

Jo.  (Eng.)  301,  2  B.  W.  C.  C.  489 — 

139. 
Pinel  v.  Rapid  R.  System  (1915)  —  Mich. 

— ,  150  N.  W.  897 — 251. 
Plant  v.  Wright  [1905]  1  K.  B.  (Eng.)  353, 

74  L.  J.  K.  B.  N.  S.  331,  53  Week. 

Rep.  358,  92  L.  T.  N.  S.  720,  21 

Times  L.  R,  217 — 198. 
Plass  v.  Central  New  England  R.  Co.  (1915) 

—  App.  Div.  — ,  155  N.  Y.  Supp. 

854 — 230,  266,  291. 
Platt  v.  Swift  &  Co.   (1915)   188  Mo.  App. 

584.  176  S.  W.  434 — 221. 
Plumb  v.  Cobden  Flour  Mills  Co.  [1914]  A. 

C.   (Ens.)  62,  83  L.  J.  K.  B.  N.  S. 

197,  109  L.  T.  N.  S.  759,  30  Times 

L.  R.  174,  58  Sol.  Jo.  184,  [1913]  W. 

N.  367,  [1914]  W.  C.  &  Ins.  Rep. 

49,  51  Scot.  L.  R.  861.  7  B.  W.  C.  C. 

1.     Ann.    Cas.     1914B,    495,    aff'g 

[1913]   W.  C.  &  Ins.  Rep.    (Eng.) 

209.  108  L.  T.  N.  S.  161,  29  Times 

L.  R.  232,  57  Sol.  Jo.  264,  6  B.  W. 

C.  C.  245 49,  335. 

Plumley  v.  Ewart  &  Son  (1915)  8  B.  W.  C. 

C.   (Eng.)  464 — 85. 
Poccardi     v.     Public     Service     Commission 

(1915)  —  W.  Va.  — ,  84  S.  E.  242, 

8   N.   C.  C.  A.   1065    (reported   in 

full  herein,  p.  299) — 228,  232,  242, 

266    267,  269,  270,  303. 
Pollard  v.  Goole  &  H.  Steam  Towing  Co. 
(1910)  3  B.  W.  C.  C.  (Eng.)  360 

113,  114. 
Polled  v.  Great  Northern  R.  Co.  (1912)  5  B. 

C.  C.  (Eng.)  620,  former  appeal,  5 

B.  W.   C.  C.   115 — 122,   124,  370. 
Pomfret  v.  Lancashire  &  Y.  R.  Co.  [1903] 

2  K.  B.  (Eng.)  718,  72  L.  J.  K.  B. 

N.  S.  729,  52  Week.  Rep.  66,  89  L. 

T.  N.  S.  176,  19  Times  L.  R.  649 — 

67,  68. 


Pomphrey  v.  Southwark  Press  [1901]  1  K. 

B.  (Eng.)  86,  83  L.  T.  N.  S.  468,  70 

L.  J.  Q.  B.  N.  S.  48,  65  J.  P.  148, 

17  Times  L.  R.  53 — 143,  158. 
Pool  v.  Chicago,  M.  &  St.  P.  R.  Co.  53  Wis. 

657,  11  N.  W.  15 — 328. 
Pope  v.  Heywood  Bros.  &  W.  Co.  (1915)  221 

Mass.  143,  108  N.  E.  1059 — 219. 
v.  Hill's  Plymouth  Co.  (1910)  102  L.  T. 

N.   S.    (Eng.)    632,  3  B.  W.  C.  C. 

339,  aff'd  in   (1912;   H.  L.)   105  L. 

T.  N.  S.   (Eng.)   675,  [1912]  W.  C. 

Rep.  15,  5  B.  W.  C.  C.  175 — 55. 
Popple    v.   Frodingham   Iron   &    Steel    Co. 

[1912]   2  K.  B.    (Eng.)    141,  81  L. 

J.  K.  B.  N.  S.  769,  106  L.  T.  N.  S. 

703,   [1912]   W.  C.  Rep.  231,  5  B. 

W.  C.  C.  394 — 185,  186. 
Porter  v.  Hopkins   (1914)  —  Ohio  St.  — , 

109  N.  E.  629 423,  428. 

v.  Whitbread  1 1914]  W.  C.  &  Ins.  Rep. 

(Eng.)  59,  7  B.  W.  C.  C.  205 149. 

Portland  v.  Central  (Unemployed)  Body  for 

London  [1908]  W.  N.    (Eng.)   242, 

25  Times  L.  R.  102 113. 

Possner  v.  Smith  Metal  Bed  Co.  (1915)  — 

App.  Div.  — ,  155  N.  Y.  Supp.  912 

— 258. 
Potter  v.  Welch  [1914]  3  K.  B.  (Eng.)  1020, 

30  Times  L.  R.  644,  [1914]  W.  N. 

106,  137  L.  T.  Jo.  290,  83  L.  J.  K. 

B.  N.  S.  1852,  7  B.  W.  C.  C.  738 — 
82,  89. 

Potts  v.  Guildford  (1914)  7  B.  W.  C.  C. 
(Eng.)  675 — 148. 

Poulton  v.  Kelsall  [1912]  2  K.  B.  (Eng.) 
131,  81  L.  J.  K.  B.  N.  S.  774,  106 
L.  T.  N.  S.  522,  28  Times  L.  R.  329, 
[1912]  W.  C.  Rep.  295,  [1912]  W. 
N.  98,  5  B.  W.  C.  C.  318 — 60,  331. 

Powell  v.  Brown  [1899]  1  Q.  B.  (Eng.)  157, 
68  L.  J.  Q.  B.  N.  S.  151,  47  Week. 
Rep.  145,  79  L.  T.  N.  S.  631,  15 

Times  L.  R.  65 193,  194. 

v.  Bryndu  Colliery  Co.  (1911)  5  B.  W. 

C.  C.  (Eng.)   124 — 55. 

v.  Crow's  Nest  Pass  Coal  Co.    (1915) 

23  D.  L.  R.    (B.  C.)   57 — 78,  179, 

356. 
v.  Lanarkshire  Steel  Co.  (1904)  6  Sc. 

Scss.  Cas.  (Scot.)  5th  series,  1039 
— 55,  77,  357. 
v.  Main    Colliery    Co.    [1900]    2   Q.   B. 

(Eng.)  145,  69  L.  J.  Q.  B.  N.  S.  542, 

64  J.  P.  323,  48  Week.  Rep.  534, 

82  L.  T.  N.  S.  340,  16  Times  L.  R. 

282 — 84,   85. 
v.  Main    Colliery    Co.     [1900]    A.    C. 

(Eng.)  366,  69  L.  J.  Q.  B.  N.  S.  758, 

49  Week.  Rep.  49,  83  L.  T.  N.  S. 

85,  16  Times  L.  R.  466,  65  J.  P. 

100 — 84,  85. 
v.  Pennsylvania,  127  U.  S.  678,  32  L. 

ed.  253,  8  Sup.  Ct.  Rep.  992 — 402. 
Powers  v.  Calcasieu  Sugar  Co.  48  La.  Ann. 

483,  19  So.  455 329. 

v.  Smith   (1910)  3  B.  W.  C.  C.  (Eng.) 

470 — 39. 
Powley  v.  Vivian  &  Co.   (1915)    169  App. 

Div.  170,  154  N.  Y.  Supp.  426 

227,  247,  266. 


524 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Praties  v.  Broxburn  Oil  Co.  [1906-07]  S.  C. 

(Scot.)  581 — 75,  78,  355,  357. 
Pressey  v.  Wirth,  3  Allen,  191 — 336. 
Price  v.   Burnyeat    (1907)    2  B.  W.  C.  C. 

(Eng.)    337 145. 

v.  Clover  Leaf  Coal  Min.  Co.  (1914)  188 

111.  App.  27 — 219. 
v.  Marsden  [1899]  1  Q.  B.  (Eng.)  493, 

68  L.  J    Q.  B.  K  S.  307,  47  Week. 

Rep.  274,   80  L.   T.   N.   S.   15,   15 

Times  L.  R.  184 — 149,  151,  373. 
v.  Tredegar  Iron  &  Coal  Co.  [1914]  W. 

N.  (Eng.)  257,  30  Times  L.  R.  583, 

58  Sol.  Jo.  632,  137  L.  T.  Jo.  180, 

[1914]  W.  C.  &  Ins.  Rep.  295,  111 

L.  T.  N.  S.  688,  7  B.  W.  C.  C.  387 

— 49. 
v.  Westminster  Brymbo  Coal  &  Coke 

Co.  [1915]  2  K.  B.    (Eng.)   128,  84 

L.  J.  K.  B.  N.  S.  746,  112  L.  T.  N. 

S.  905,  31  Times  L.  R.  219,  [1915] 

W.  N.  69,  59  Sol.  Jo.  301,  8  B.  W. 

C.  C.  257 — 189. 
Priestley    v.    Port    of    London    Authority 

[1913]  2  K.  B.  (Eng.)  115,  82  L.  J. 

K.  B.  N.  S.  353,  108  L.  T.  N.  S. 

277,  29  Times  L.  R.  252,  57  Sol.  Jo. 

282,  6  B.  W.  C.  C.  105 — 151. 
Prigg  v.  Pennsylvania,  16  Pet.  539,  10  L. 

ed.  1060 454. 

Pritchard  v.  Torkington  [1914]  W.  C.  &  Ins. 

Rep.  (Eng.)  271,  7  B.  W.  C.  C.  719, 

58  Sol.  Jo.  739 — 41,  51. 
Proctor  v.  Cumisky  (1904)  6  Sc.  Sess.  Cas. 

5th  series,  832,  41  Scot.  L.  R.  636, 

12  Scot.  L.  T.  172 — 191. 
v.  Robinson  [1911]  1  K.  B.  (Eng.)  1004, 

80  L.  J.  K.  B.  N.  S.  641,  3  B.  W. 

C.  C.  41 146,  380. 

v.  The  Serbino   (1915)   31  Times  L.  R. 

(Eng.)  524 — 70. 
Provost  v.  St.  Gabriel  Lumber  Co.  (1910) 

12    Quebec    Pr.    Rep.    285—117. 
Przykopenski    v.    Citizens    Coal    Min.    Co. 

(1915)  —  111.  — ,  110  N.  E.  336 — 

410. 
Puget  Sound  Traction  Light  &  P.  Co.  v. 

Schleif  (1915)  135  C.  C.  A.  616,  220 

Fed.  48 — 219,  223. 
Pugh  v.  Dudley  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)  265,  7  B.  W.  C.  C.  528 — 68. 
Pumpherston  Oil  Co.  v.  Cavaney   (1903)   5 

Sc.   Sess.   Cas.  5th  series,  963,  40 

Scot.  L.  R.  724,  11  Scot.  L.  T.  171 

166. 

Purse  v.  Hay  ward  (1908;  C.  C.)   125  L.  T. 

Jo.  (Eng.)  10,  1  B.  W.  C.  C.  216 — 

32,  297. 
Purves  v.  Sterne  (1900)  2  Sc.  Sess.  Cas.  5th 

series,  887,  37  Scot.  L.  R.  696 — 211. 
Puza  v.  C.  Hennecke  Co.   (1914)   158  Wis. 

482,  149  N.  W.  223 — 219. 
Pyrce  v.  Penrikyber  Nav.  Colliery  Co.  [1902] 

1  K.  B.   (Eng.)  221,  85  L.  T.  N.  S. 

477,  18  Times  L.  R.  54,  71  L.  J. 

K.  B.  N.  S.  192,  66  J.  P.  198,  50 

Week.  Rep.  197 — 125. 


Quinlan    v.    Barber    Asphalt    Paving    Co. 
(1913)  84  N.  J.  L.  510,  87  Atl.  127 
— 253. 
Quinn  v.  Brown  (1906)  8  Sc.  Sess.  Cas.  5th 

series  (Scot.)  855 81. 

v.  Flynn  (1910)  44  Ir.  L.  Times  183,  3 

B.  W.  C.  C.  594 — 191. 
v.  M'Callum  [1909]  S.  C.  227,  46  Scot. 
L.  R.  141 — 171. 


Radcliffe  v.  Pacific  Steam  Nav.  Co.   [1910] 

1  K.  B.  (Eng.)   685,  79  L.  J.  K.  B. 

N.  S.  429,  102  L.  T.  N.  S.  206,  26 

Times  L.  R.  319,  54  So.  Jo.  404,  3 

B.  W.  C.  C.  185 — 164,  379. 
Raine  v.  Jobson   [1901]   A.  C.    (Eng.)   404, 

70  L.  J.  K.  B.  N.  S.  771,  49  Week. 

Rep.  705,  85  L.  T.  N.  S.  141,  17 

Times  L.  R.  627,  3  W.  C.  C.  135 

121,  203-205,  210,  211. 
Rakiec  v.  Delaware,  L.  &  W.  R.  Co.  (1913) 
-  N.  J.  L.  — ,  88  Atl.  953 — 258. 
Ralph  v.  Mitchell  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)  501,  6  B.  W.  C.  C.  678 — 92. 
Ramsay  v.  Mackie   (1904)   7  Sc.  Sess.  Cas. 

5th  series    (Scot.)   106 — 212. 
Rankine  v.  Alloa  Coal  Co.  (1904)  6  Sc.  Sess. 

Cas.  5th  series,  375,  41  Scot.  L.  R. 

306,  11  Scot.  L.  T.  670 — 90. 
v.  Fife  Coal  Co.   (1915)   52  Scot.  L.  R. 

361,  8  B.  W.  C.  C.  401 — 143. 
Raphael  v.  Brandy  [1911]  A.  C.  (Eng.)  413, 

80  L.  J.  K.  B.  N.  S.  1067,  105  L.  T. 

N.  S.  116,  27  Times  L.  R.  497,  55 

Sol.  Jo.  579,  4  B.  W.  C.  C.  307 — 

152    374 
Rayman  v.  Fields    (1910)    102  L.  T.  N.  S. 

(Eng.)   154,  26  Times  L.  R.  274,  3 

B.  W.  C.  C.  119 — 67,  180. 
Rayner  v.  Sligh  Furniture  Co.   (1914)   180 

Mich.  168,  146  N.  W.  665,  4  N.  C. 

C.  A.  851  (reported  in  full  herein, 
p.   [22]   486) — 237,  266,  341,  [20] 
484. 

Reardon  v.  Philadelphia  &  R.  R.  Co.  (1913) 

85  N.  J.  L.  90,  88  Atl.  970,  4  N.  C. 

C.  A.  776 — 252,  253. 
Reck  v.   Whittlesberger    (1914)    181   Mich. 

463,  148  N.  W.  247 — 242,  267,  268. 
Reddy  v.  Broderick  [1901]  2  I.  R.  (Ir.)  328 

— 198,  199. 

Redfield  v.  Michigan  Workmen's  Compensa- 
tion Mut.  Ins.  Co.  (1915)  183  Mich. 

633,  150  N.  W.  362,  8  N.  C.  C.  A. 

889 — 266. 
Reed  v.  Great  Western  R.  Co.  [1909]  A.  C. 

31,  2  B.  W.  C.  C.  109,  99  L.  T.  N. 

S.  781,  78  L.  J.  K.  B.  N.  S.  31,  25 

Times    L.   R.    36,   46    Scot.   L.   R. 

700.  53  Sol.  Jo.  31 46,  [21]  485, 

[22]  486. 
v.  Great  Western  R.  Co.  [1908]  W.  N. 

(Eng.)    212 46,    [21]    485,    [22] 

486. 
v.  Smith   (1910)   3  B.  W.  C.  C.  (Eng.) 

223 113 

v.  Wymeric  (1914)  7  B.  W.  C.  C.  (Eng.) 
421 — 182. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


525 


Reeks   v.   Kynoch    (1901)    18   Times  L.  R. 

(Eng.)  34,  50  Week.  Rep.  113,  2  N. 

C.  C.  A.  877 — 76,  356. 
Rees  v.   Consolidated  Anthracite  Collieries 

(1912)    5  B.  W.  C.  C.    (Eng.)   403, 

[1912]  W.  C.  Rep.  205 — 184. 
v.  Penrikyber  Nav.  Colliery  Co.  [1903] 

1  K.  B.  (Eng.)  259,  72  L.  J.  K.  B. 

N.  S.  85,  67  J.  P.  231,  51  Week. 

Rep.  247,  87  L.  T.  N.  S.  661,  19 

Times  L.  R.  113,  1  L.  G.  R.  173 — 

125. 
v.  Powell     Duffryn     Steam     Coal     Co. 

(1900)    64  J.   P.    (Eng.)    164 75, 

355. 
v.  Richard    (1899)    1  W.  C.  C.    (Eng.) 

118 — 183. 
v.  Thomas  [1899]  1  Q.  B.  (Eng.)  1015, 

68  L.  J.  Q.  B.  N.  S.  539,  47  Week. 

Rep.  504,  80  L.  T.  N.  S.  578,  15 

Times  L.  R.  301 — 56. 
Reeve  v.  Northern  P.  R.  Co.  82  Wash.  268, 

L.R.A.1915C,    37,    144    Pac.    63,    8 

N.  C.  C.  A.  167 — 459. 
Refuge  Assur.  Co.  v.  Millar  (1911)  49  Scot. 

L.  R.  67-^-90. 
Reg.  v.  Clarke   [1906]   2  I.  R.   (Ir.)    135 — 

124,  370. 
Reid  v.  Anchor  Line  (1903)  5  Sc.  Sess.  Cas. 

5th    series,    435,    40    Scot.    L.    R. 

352,  10  Scot.  L.  T.  591 — 204. 
v.  Colorado,  187  U.  S.  137,  47  L.  ed. 

108,  23  Sup.  Ct.  Rep.  92,  12  Am. 

Grim.  Rep.  506 406,  453. 

v.  Fleming  (1901)  3  Sc.  Sess.  Cas.  5th 

series,  1000,  38  Scot.  L,  R.  720,  9 

Scot.  L.  T.  113 — 213. 
v.  Leitch  Collieries  (1912)  7  B.  W.  C.  C. 

(Alberta)  1017 — 118. 
Reimers  v.  Proctor  Pub.  Co.  (1913)  85  N.  J. 

L.  441,  89  Atl.  931,  4  N.  C.  C.  A. 

738 — 231,  239,  271. 
Reithel,  Re  (1915)  —  Mass.  — ,  109  N.  E. 

951  (reported  in  full  herein,  p.  304) 

— 231,  240,  309. 
Rendall  v.  Hill's  Dry  Docks  &  Engineering 

Co.  [1909]  2  Q.  B.    (Eng.)   245,  69 

L.  J.  Q.  B.  N.  S.  554,  64  J.  P.  451, 

48  Week.  Rep.  530,  82  L.  T.  N.  S. 

521,  16  Times  L.  R.  368 — 93. 
Rennie  v.  Reid  [1908]  S.  C.  (Scot.)  1057,  45 

Scot.  L.  R.  814,  1  B.  W.  C.  C.  324 

120,  364. 
Replogle  v.  Seattle  School  Dist.   (1915)   84 

Wash.  581,  147  Pac.  196 — 219. 
Revie  v.   Gumming    [1911]    S.   C.   1032,  48 

Scot.  L.  R.  831 — 55. 
Rex  v.  Crossley  (Ct.  Crim.  App.)    [1909]  1 

K.  B.    (Eng.)    411,  78  L.  J.  K.  B. 

N.  S.  299,  100  L.  T.  N.  S.  463,  25 

Times  L.  R.  225,  73  J.  P.  119,  53 

Sol.  Jo.  214,  22  Cox,  C.  C.  40 — 181. 
v.  Owen  [1902]  2  K.  B.  (Eng.)  436,  71 

L,  J.  K.  B.  N.  S.  770,  87  L.  T.  N. 

S.  298,  18  Times  L.  R.  701 — 190. 
v.  Registrar  of  Bow  County  Ct.   (Div. 

Ct.)    [1914]    3   K.   B.    (Eng.)    266, 

[1914]   W.  N.  223,  83  L.  J.  K.  B. 

N.  S.  1806,  111  L.  T.  N.  S.  277 — 

189. 


Rex    v.    Templer    [1912]     2    K.    B.    444, 

81  L.  J.  K.  B.  N.  S.  805,  [1912]  W. 

C.  Rep.  209,  5  B.  W.  C.  C.  454,  106 

L.  T.  N.  S.  855,  [1912]  W.  N.  135, 

28  Times  L.  R.  410,  56  Sol.  Jo.  501 

— 147,  177,  178,  381. 
v.  Templer  [1912]  1  K.  B.  (Eng.)  351, 

81  L.  J.  K.  B.  N.  S.  399,  105  L.  T. 

N.  S.  905,  28  Times  L.  R.  146,  132 

L.  T.  Jo.  203,  5  B.  W.  C.  C.  242 

147,   177,  178,  381. 
v.  Thetford      County      Ct,      Registrar 

(1915;    Div.   Ct.)    [1915]    1   K.   B. 

(Eng.)    224,   112  L.  T.  N.   S.  413, 

84  L.  J.  K.  B.  N.  S.  291,  [1915]  W. 

C.  &  Ins.  Rep.  136,  [1914]  W.  N. 

438,  8  B.  W.  C.  C.  276 — 174, 
Reyners   v.  Makin    (1911)    4   B.  W.   C.  C. 

(Eng.)  267 165. 

Reynolds  v.  Day,  79  Wash.  499, 140  Pac.  681 

(reported  in  full  herein,  p.  432)  — 

443. 
Rheinwald  v.  Builders'  Brick  &  Supply  Co. 

(1915)  168  App.  Div.  425,  153  N.  Y. 

Supp.  598 247. 

Rhodes  v.  Soothill  Wood  Colliery  Co.  [1909] 

1  K.  B.  (Eng.)  191,  78  L.  J.  K.  B. 

N.    S.    141,    100    L.    T.    N.    S.    15, 

[1908]  W.  N.  252,  2  B.  W.  C.  C. 

377 — 163,  189. 
Richards  v.  Morris   [1915]   1  K.  B.    (Eng.) 

221,  84  L.  J.  K.  B.  N.  S.  621,  110 

L.  T.  N.  S.  496,   [1914]   W.  C.  & 

Ins.  Rep.  116,  7  B.  W.  C.  C.  130 — 

52. 
v.  Pitt    (1915)    84   L.   J.   K.   B.  N.   S. 

(Eng.)    1417 115. 

Richardson   v.  Denton  Colliery   Co.    [1913] 

W.  N.  (Eng.)  238,  [1913]  W.  C.  & 

Ins.  Rep.  554,  109  L.  T.  N.  S.  370, 

6  B.  W.  C.  C.  629 — 55. 

v.    The  Avonmore  (1911)  5  B.  W.  C.  C. 

(Eng.)   34 70. 

Riddle  v.  MacFadden,  201  N.  Y.  215,  94  N. 

E.  644 — 279. 
Rigby  v.  Cox  [1904]  1  K.  B.  (Eng.)  358,  73 

L.  J.  K.  B.  N.  S.  80,  68  J.  P.  195, 

52  Week.  Rep.  195,  89  L.  T.  N.  S. 

717,  20  Times  L.  R.  136 — 179. 
v.  Cox  [1904]  2  K.  B.  (Eng.)  208,  73  L. 

J.  K.  B.  N.  S.  690,  91  L,  T.  N.  S. 

72,  20  Times  L.  R.  461,  68  J.  P.  385 

jg2 

Rigel,  The  (1912;  Adm.)  106  L.  T.  N.  S. 
(Eng.)  648,  [1912]  W.  N.  56,  28 
Times  L.  R.  251,  12  Asp.  Mar.  L. 
Cas.  192,  L.  R.  [1912]  P.  99,  81 
L.  J.  Prob.  N.  S.  86 103,  362. 

Riley  v.  Holland  &  Sons  [1911]  1  K.  B. 
(Eng.)  1029,  80  L.  J.  K.  B.  N.  S. 
814,  104  L.  T.  N.  S.  371,  27  Times 
L.  R.  327,  4  B.  W.  C.  C.  155 — 58, 
329. 

Rimmer  v.  Premier  Gas  Engine  Ca.  (1907) 
97  L.  T.  N.  S.  (Eng.)  226,  23  Times 
L.  R.  610,  9  W.  C.  C.  56 196. 

Ringwood   v.    Kerr    Bros.    (1914;    Alberta) 

7  B.  W.  C.  C.  1056 96. 

Rintoul  v.   Dalmeny   Oil  Co.    [1908]    S.  C. 

(Scot.)    1025 123. 


526 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Risdale  v.  The  Kilmarnock  [1915]  1  K.  B. 

(Eng.)    503,  84  L.  J.  K.  B.  N.  S. 

298,  [1915]  W.  C.  &  Ins.  Rep.  141, 

112  L.  T.  N.  S.  439,  31  Times  L.  R. 

134,  59  Sol.  Jo.  143,  8  B.  W.  C.  C. 

7 — 53. 
Ritchings   v.   Bryant,   6   B.   W.   C.   C.   183, 

[1913]   W.  C.  &  Ins.  Rep.  171 — 

120,  364,  365. 
Rixsom  v.  Pritchard  [1900]  1  Q.  B.  (Eng.) 

800,  82  L.  T.  N.  S.   186,  69  L.  J. 

Q.  B.  N.  S.  494,  16  Times  L.  R.  250 

197. 

Roberts  v.  Benham    (1910)    3  B.  W.  C.  C. 

(Eng.)   430 — 141. 
v.  Charles  Wolff  Packing  Co.  (1915)  95 

Kan.  723,  149  Pac.  413 — 245,  261, 

263,  377. 
v.  Crystal  Palace  Foot  Ball  Club  (1909) 

3  B.  W.  C.  C.  (Eng.)  51 — 88. 
v.  Hall  (1912)   106  L.  T.  N.  S.   (Eng.) 

769,    [1912]   W.  C.  Rep.  269,  5  B. 

W.  C.  C.  331 — 142,  147. 
v.  Trollop  (1914)  7  B.  W.  C.  C.  (Eng.) 

678 — 70. 
Robertson  v.  Allan  Bros.  (1908)  77  L.  J.  K. 

B.  N.  S.  (Eng.)  1072,  98  L.  T.  N.  S. 
821,  1  B.  W   C.  C.  172 — 66,  67,  78. 

v.  Hall  Bros.  S.  S.  Co.  (1910)  3  B.  W. 

C.  C.  (Eng.)  368 — 122. 
Robinson  v.  Anon    (1904;    C.   C.)    39  L.  J. 

(Eng.)    164,  6  W.  C.  C.  117 135. 

Robson  v.  Blakey  [1912]  S.  C.  334,  49  Scot. 
L.  R.  254,  [1912]  W.  C.  Rep.  86,  5 

B.  W.  C.  C.  536 43,  292. 

Rocca  v.  Jones   [1914]   W.  C.  &  Ins.  Rep. 

(Eng.)  34,  7  B.  W.  C.  C.  101,  6  K 

C.  C.  A.  624 — 141,  179. 
Rockwell  v.  Lewis  (1915)  168  App.  Div.  674, 

154   N.   Y.    Supp.   893 — 258. 
Rodd  v.  Heartt.     See  Lottawanna,  The. 
Rodger  v.  Paisley  School  Bd.   [1912]   S.  C. 

584,    [1912]    W.    C.    Rep.    157,   49 

Scot.  L.  R.  413,  5  B.  W.  C.  C.  547 — 

42,  314,  347. 
Rogers  v.  Cardiff  Corp.  [1905]  2  K.  B.  (Eng.) 

832,   75  L.   J.  K.   B.   N.   S.   22,  93 

L.  T.  N.  S.  683,  22  Times  L.  R.  9, 

8  W.  C.  C.  51,  54  Week.  Rep.  35, 

70  J.  P.  9,  4  L.  G.  R..  1 — 58,  193, 

196,  208,  368. 
v.  Metropolitan   Borough    (1913)    7   B. 

W.  C.  C.  (Eng.)   10 — 178. 
v.  Metropolitan  Borough  [1914]  W.  N. 

(Eng.)    279,  58   Sol.  Jo.  656,  7   B. 

W.  C.  C.  432 — 179. 
Rogers-Ruger  Co.  v.  Murray,  115  Wis.  267, 

59  L.R.A.  737,  95  Am.  St.  Rep.  901, 

91  N.  W.  657 — 377. 
Roles  v.  Pascall  [1911]  1  K.  B.  (Eng.)  982, 

80  L.  J.  K.  B.  N.  S.  728,  104  L.  T. 

N.  S.  298,  4  B.  W.  C.  C.  148 — 91. 
Rongo  V.  R.  Waddington  &  Sons  (1915) 

—  N.  J.  L.  — ,  94  Atl.  408 — 246. 
Roos  v.  State,  6  Minn.  428,  Gil.  291 — 402. 
Roper  v.  Freke  (1915)  31  Times  L.  R. 

(Eng.)   507 — 120,  136. 
v.  Greenwood    [1901]    83   L.    T.   N.   S. 

(Eng.)  471 — 32,  303. 


Rose  v.  Morrison  (1911)  80  L.  J.  K.  B.  N. 
S.  (Eng.)  1103,  105  L.  T.  N.  S.  2, 
4  B.  W.  C.  C.  277 — 47,  318. 

Rosenqvist  v.  Bowring  [1908]  2  K.  B.  (Eng.) 
108,  77  L.  J.  K.  B.  N.  S.  545,  98 
L.  T.  N.  S.  773,  24  Times  L.  R.  504 
160. 

Rosewell  Gas  Coal  Co.   v.  M'Vicar    (1904) 

7  Sc.  Sess.  Cas.  5th  series   (Scot.) 
290 — 174. 

Rosie  v.  MacKay    [1909-10]    S.  C.  714,  46 

Scot.  L.  R.  999 75. 

v.  Mackay   [1910]   S.  C.  714,  47  Scot. 

L.  R.  654 — 168. 
Ross  v.  Smith  (1909)  So.  Austr.  L.  R.  128 — 

93. 
Rothwell  v.  Davies   (1903)   19  Times  L.  R. 

(Eng.)  423 — 140,  157,  388. 
Rounsaville  v.  Central  R.  Co.   (1915)  —  N. 

J.    L.   — ,   94   Atl.   392, 445,  463. 

v.  Central  R.  Co.  37  N.  J.  L.  J.  295 — 

452. 
Rouse  v.  Dixon  [1904]  2  K.  B.  (En?.)  628, 

73  L.  J.  K.  B.  N.  S.  662,  68  J.  P. 

407,  91  L.  T.  N.  S.  436,  20  Times 

L.  R.  553,  53  Week.  Rep.  237 — 72, 

73. 
Rowe  v.  Reynolds   (1900)    12  West.  Austr. 

L.  R.  75 — 77,  357. 
Rowland  v.  Wright  (1908)  77  L.  J.  K.  B.  N. 

S.    (Eng.)    1071,    24    Times    L.   R. 

852,   [1909]   1  K.  B.  963,  99  L.  T. 

N.  S.  758,  1  B.  W.  C.  C.  192 — 41, 

239,  307. 
Roylance  v.  Canadian  P.  R.  Co.   (1908)   14 

B.  C.  20 — 144. 

Ruabon  Coal  Co.  v.  Thomas  (1909)  3  B.  W. 

C.  C.    (Eng.)    32 — 141,  389. 
Rudge  v.  Young  (1914)  7  B.  W.  C.  C.  (Eng.) 

406 — 181. 
Rumboll  v.  Nunnery  Colliery  Co.  (1899)  80 

L.  T.  N.  S.  42,  1  W.  C.  C.  28,  63 

J.  P.  132 — 76,  356,  [23]  487. 
Rushton  v.  Skey  [1914]  3  K.  B.  (Eng.)  706, 

[1914]  W.  N.  281,  137  L.  T.  Jo.  212, 

30  Times  L.  R.  60,  83  L.  J.  K.  B. 

N.   S.   1503,  111  L.  T.  N.  S.  700, 

58  Sol.  Jo.  685,  7  B.  W.  C.  C.  508 — 

187. 
Russell  v.  Holme  (1900;  C.  C.)  2  W.  C.  C. 

(Eng.)    153,   108   L.   T.  Jo.   373 

142,  143. 
v.  Keary  (1915)    52  Scot.  L.  R.  447,  8 

B.  W.  C.  C.  410 — 109. 
v.  McCluskey    (1900)    2   Sc.   Sess.  Cas. 

5th  series,  1312,  37  Scot.  L.  R.  931, 

8  Scot.  L.  T.  172 — 155. 

Russo    v.   Omaha   &   C.    B.   Street   R.   Co. 

(1915)   —  Neb.  — ,  153  N.  W.  510 

— 260. 
Ryalls  v.  Mechanics'  Mills,  150  Mass.  190, 

5  L.R.A.  667,  22  N.  E.  766,  15  Am. 

Neg.  Cas.  552 — 307. 
Ryan,  Re   (1911)   11  New  South  Wales  St. 

Rep.  33 — 113. 
v.  Hartley  [1912]  2  K.  B.   (Eng.)  150, 

81  L.  J.  K.  B.  N.  S.  666,  106  L.  T. 

N.   S.   702,    [1912]    W.   C.  R.   236, 

[1912]   W.  N.  115,  5  B.  W.  C.  C. 

407 — 94,  190. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


527 


Ryan  v.  Tipperary  (1912)  46  Ir.  Law  Times, 

69,  5  B.  W.  C.  C.  578 — 119. 
Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330,  37 

L.  J.  Exch.  N.  S.  161,  6  Mor.  Min. 

Rep.  129,  1  Eng.  Rul.  Cas.  235— 

336. 


Sabella  v.  Brazileiro  (1914)  86  N.  J.  L.  505, 

91  Atl.  1032,  6  N.  C.  C.  A.  958 

248,  365. 
v.  Brazileiro,  —  N.  J.  — ,  94  Atl.  1103 

— 248,  365. 
Sadowski  v.  Thomas  Furnace  Co.  (1914)  157 

Wis.  443,  146  N.  W.  770 — 215,  275. 
Said  v.  Welsford  (1910)  3  B.  W.  C.  C.  (Eng.) 

233 — 188. 
St.  Louis,  A.  &  T.  R.  Co.  v.  Welch,  72  Tex. 

298,  2  L.R.A.  839,  10  S.  W.  529 

329. 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Hesterly,  228 

U.  S.  702,  57  L.  ed.  1031,  33  Sup. 

Ct.  Rep.  703 — 456,  458. 
St.  Louis,  S.  F.  &  T.  R.  Co.  v.  Scale,  229 

U.  S.  156,  57  L.  ed.  1129,  33  Sup. 

Ct.  Rep.  651,  Ann.  Cas.  1915C,  156 

456. 

Salem  Hospital  v.  Olcott  (1913)  67  Or.  448, 

136  Pac.  341,  4  N.  C.  C.  A.  614 — 

272. 
Salus  v.  Great  Northern  R.  Co.  (1914)  157 

Wis.  546,  147  N.  W.  1070— 219. 
Sambrook  v.  New  Sharlston  Collieries  Co. 

(1914)  7  B.  W.  C.  C.  (Eng.)  728 — 
180. 

Sampson  v.  General  Steam  Nav.  Co.  [1914] 
W.  C.  &  Ins.  Rep.  (Eng.)  36,  7  B. 
W.  C.  C.  107 — 80. 

Sanderson  v.  Harkinson  (1913)  6  B.  W.  C.  C. 

(Ens;.)  648 — 87. 

v.  Wright  (1914)  110  L.  T.  N.  S.  (En?.) 
517,  30  Times  L.  R.  279,  [1914] 
W.  C.  &  Ins.  Rep.  177,  7  B.  W.  C.  C. 
141 — 53. 

San  Francisco  Stevedoring  Co.  v.  Pillsbury 

(1915)  —  Cal.  — ,  149  Pac.  586 

225. 

Sapcote  v.  Hancock   (1911)   4  B.  W.  C.  C. 

(Eng.)    184 — 162. 
Sauntry  v.  Laird,  Norton  Co.  100  Wis.  146, 

75  N.  W.  985 — 377. 
Savage,  Re   (1915)   —  Mass.  — ,  110  N.  E. 

283 — 241,  242,  267. 
v.  Jones,  225  U.  S.  501,  56  L.  ed.  1182, 

32  Sup.  Ct.  Rep.  715 453,  454. 

Scales  v.  West  Norfolk  Farmers'  Manure  & 

Chemical  Co.   [1913]  W.  C.  &  Ins. 

Rep.  165,  6  B.  W.  C.  C.  188 — 71, 

302,  304. 
Scalzo  v.  Columbia  Macaroni  Factory  (1912) 

17  B.  C.  201,  6  B.  W.  C.  C.  945 — 

46. 
Schaeffer  v.  De  Grottola  (1913)  85  N.  J.  L, 

444.  89  Atl.  921,  4  N.  C.  C.  A.  582 

— 248. 
Schneider  v.  Provident  L.  Ins.  Co.  24  Wis. 

28,  1  Am.  Rep.  157,  7  Am.  Neg.  Cas. 

174 — 275. 


Schofield  v.  Clough   [1913]   2  K.  B.   (Eng.) 

103,  82  L.  J.  K.  B.  N.  S.  447,  108 
L.  T.  N.  S.  532,  57   Sol.  Jo.  243, 
[1913]   W.  C.   &   Ins.  Rep.  292,  6 

B.  W.  C.  C.  66 — 188. 

v.  Clough  (1912)  5  B.  W.  C.  C.  (Eng.) 
417,  [1912]  W.  C.  Rep.  301 — 188. 

Schoonmaker  v.  Gilmore,  102  U.  S.  118,  26 
L.  ed.  95 440. 

Schwab  v.  Emporium  Forestry  Co.  (1915) 
167  App.  Div.  614,  153  N.  Y.  Supp. 
234 — 256. 

Schwartz  v.  India  Rubber,  Gutta  Percha  & 
Teleg.  Works  Co.  [1912]  2  K.  B. 
(Eng.)  299,  [1912]  W.  N.  98,  28 
Times  L.  R.  331,  81  L.  J.  K.  B.  N. 
S.  780,  [1912]  W.  C.  Rep.  190,  106 
L.  T.  N.  S.  706,  5  B.  W.  C.  C.  390 — 

104,  445. 

Schweig  v.  Chicago,  M.  &  St  P.  R.  Co.  132 

C.  C.  A.  660,  216  Fed.  750,  7  N.  C. 
C.  A.  135 459. 

Schweitzer     v.     Hamburg-American     Line 

(1912)    78    Misc.    448,    138    N.   Y. 

Supp.  944 445. 

Scott  v.  Long  Meg  Plaster  Co.  (1914)  7  B. 

W.  C.  C.  (Eng.)  502 — 165. 
v.  Payne  Bros.  (1914)  85  N.  J.  L.  446, 

89  Atl.  927,  4  N.  C.  C.  A.  682 

232,  233,  236,  248,  266,  365. 
v.  Sanquhar  &  K.  Collieries   (1915)  52 

Scot.  L.  R.  391,  8  B.  W.  C.  C.  405 

185,  187. 
Scullion  v.  Cadzow  Coal  Co.   [1914]   S.  C. 

36,    [1913]    2   Scot.   L.   T.   271,  51 

Scot.  L.  R.  39,  [1914]  W.  C.  &  Ins. 

Rep.  129,  7  B.  W.  C.  C.  833 — 109. 
Seaboard  Air  Line  R.  Co.  v.  Horton,  233  U. 

S.  492,  58  L.  ed.  1062,  34  Sup.  Ct. 

Rep.  635,  Ann.  Cas.  1915B,  475,  8 

N.  C.  C.  A.  834- — 457. 
Second    Employers'    Liability    Cases,    223 

U.  S.  1,  56  L.  ed.  327,  38  L.R.A. 

(N.S.)  33,  32  Sup.  Ct.  Rep.  169,  1 

N.  C.  C.  A.  875 — 455,  457. 
Segura,  The  v.  Blampied  (1911)  4  B.  W.  C. 

C.  (Eng.)  192 — 189. 
Seller  v.  Boston  Rural  Dist.  Council  (1914) 

7  B.  W.  C.  C.   (Eng.)   99 — 45. 
Senior  v.  Fountains  [1907]  2  K.  B.  (Eng.) 

563,  76  L.  J.  K.  B.  N.  S.  928,  97 

L.  T.  N.  S.  562,  23  Times  L.  R. 

634 — 123. 
Septimo's  Case   (1914)   219  Mass.  430,  107 

N.  E.  63,  7  N.  C.  C.  A.  906 — 255, 

260,  266,  268,  272,  380. 
Sexton  v.  Newark  Dist.  Teleg.  Co.  86  N.  J. 

L.    701,    91    Atl.    1070 — 266,    316, 

401,  412,  413,  415,  426,  431. 
v.  Newark  Dist.  Teleg.  Co.    (1913)    84 

N.  J.  L.  85,  86  Atl.  451,  3  N.  C.  C. 

A.   569 266,   316,   401,   412,   413, 

415,  426,  431. 

Shade  v.  Ash  Grove  Lime  &  Portland  Ce- 
ment Co.  (1914)  92  Kan.  146,  139 

Pac.  1193,  5  N.  C.  C.  A.  763 — 221, 

223. 
v.  Ash  Grove  Lime  &  Portland  Cement 

Co.   (1914)   93  Kan.  257,  144  Pac. 

249 410,  412,  414,  423. 


528 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Shaeffer  v.  De  Grottola  (1914)  85  N.  J.  L. 

444,  89  Atl.  921,  4  N.  C.  C.  A.  582, 

affirmed  in  —  N.  J.  L.  — ,  94  Atl. 

1103— -365. 
Shannon  v.  Bainbridge  Weaving  Co.  (1911) 

45  Ir.  Law  Times,  74 88. 

Sharkey  v.  Skilton,  83  Conn.  503,  77  Atl. 

950 279. 

Sharman  v.  Holliday  [1904]  1  K.  B.  (Eng.) 

235,  73  L.  J.  K.  B.  N.  S.  176,  90  L. 

T.  N.  S.  46,  20  Times  L.  R.  135,  68 

J.  P.  151 164. 

Sharp  v.  Johnson  &  Co.  [1905]  2  K.  B.  139, 

74  L.  J.  K.  B.  N.  S.  566,  53  Week. 

Rep.  597,  92  L.  T.  N.  S.  675,  21 

Times  L.  R.  482 61,  329,  333. 

Sharpe  v.  Carswell  [1910]  S.  C.  391,  47  Scot. 

L.  R.  335,  3  B.  W.  C.  C.  552 117. 

Shaw  v.  Greenacres  Spinning  Co.  (1915)  8 

B.  W.  C.  C.  (Eng.)  35 180. 

v.  McFarlane  (1914)  52  Scot  L.  R.  236, 

8  B.  W.  C.  C.  382 48,  64,  310. 

v.  Wigan  Coal  &  I.  Co.  (1909)  3  B.  W. 

C.  C.   (Eng.)   81 — 65,  310. 

Shea  v.  Drolenvaux   (1903)   88  L.  T.  N.  S. 

(Eng.)   679,  19  Times  L.  R.  473,  5 

W.  C.  C.  144 — 183. 
v.  Drolenvaux     (1903)     6    W.     C.    C. 

(Eng.)  93 — 211. 
Shearer  v.  Miller   (1899)   2  Sc.  Sess.  Cas. 

5th  series,  114,  37  Scot.  L.  R.  80,  7 

Scot.  L.  T.  231 — 88. 
Sheehy  v.  Great  S.  &  W.  R.  Co.  [1913]  W. 

C.   &   Ins.   Rep.   404,   47    Ir.   Law 

Times  161,  6  B.  W.  C.  C.  927 — 28, 

57. 
Sheerin  v.  F.  &  J.  Clayton  &  Co.   [1910] 

2  I.  R.  105,  44  Ir.  Law  Times,  23, 

3  B.  W.  C.  C.  583 30,  37,  291. 

Sheldon  v.  Needham  (1914)  30  Times  L.  R. 

(Eng.)  590,  58  Sol.  Jo.  652,  137  L. 

T.  Jo.   212,    [1914]    W.   C.   &   Ins. 

Rep.  274,  111  L.  T.  N.  S.  729,  7 

B.  W.  C.  C.  471 42,  314. 

Sheridan  v.  P.  J.  Grol  Constr.  Co.  (1935)  — 

App.  Div.  — ,  155  N.  Y.  Supp.  859 

— 218. 
Sherlock  v.  Ailing,  93  U.  S.  99,  23  L.  ed. 

819 406,  460. 

Sherwood  v.  Johnson  [1913]  W.  C.  &  Ins. 

Rep.   (Eng.)   57,  5  B.  W.  C.  C.  686 

68,   278. 

Shier   v.    Highbridge   Urban   Dist.    Council 

(1908;  C.  C.  )  1  B.  W.  C.  C.  (Eng.) 

347 — 40. 
Shinnick  v.  Clover  Farms  Co.    (1915)    169 

App.    Div.    236,    154    N.    Y.    Supp. 

423 — 217,  223. 
Shipp    v.    Frodingham    Iron    &    Steel    Co. 

[1913]   1  K.  B.   (Eng.)   577,  82  L. 

J.  K.  B.  N.  S.  273,  108  L.  T.  N.  S. 

55,  29  Times  L.  R.  215,  57  Sol.  Jo. 

264,  [1913]  W.  K  16,  [1913]  W.  C. 

&  Ins.  Rep.  230,  6  B.  W.  C.  C.  1, 

Ann.  Cas.  1914C,  183 — 159. 
Shirt  v.  Calico  Printers'  Asso.  [1909]  2  K. 

B.   (Eng.)  51,  3  B.  R.  C.  62,  78  L. 

J.  K.  B.  N.  S.  528,  100  L.  T.  N.  S. 

740,  25  Times  L.  R.  451,  53  Sol.  Jo. 

430,  2  B.  W.  C.  C.  342 — 133,  141, 

292,  389. 


Shore  v.  Hyrcania    (1911)    4  B.  W.  C.  C. 

(Eng.)  207 184. 

Sidney   v.   Collins    (1910)    3    B.   W.   C.   C. 

(Eng.)  433 — 85. 
Siemientkowski  v.  Berwind  White  Coal  Min. 

Co.  (1914)  —  N.  J.  Eq.  — ,  92  Atl. 

909 — 239. 
Silcock  v.  Golightly  [1915]  1  K.  B.  (Eng.) 

748,  84  L.  J.  K.  B.  N.  S.  499,  112 

L.  T.  N.  S.  800,  50  L.  J.  55,  [1914] 

W.  C.  &  Ins.  Rep.  164,  [1915]   W. 

N.  33,  8  B.  W.  C.  C.  48 — 145. 
Silk  v.  Isle  of  Thanet  Rural  Dist.  Council 

(1913)  6  B.  W.  C.  C.  (Eng.)  539 — 

180. 
Silvester  v.  Cude   (1899)    15  Times  L.  R. 

(Eng.)   434,  1  W.  C.  C.  120 — 197. 
Simmonds  v.  Stourbridge  Brick  &  Fire  Clay 

Co.  [1910]  2  K.  B.   (Eng.)  269,  79 

L.  J.  K.  B.  N.  S.  997,  102  L.  T.  N. 

S.  732,  26  Times  L.  R.  430 — 174. 
Simmons  v.  Faulds  (1901)  17  Times  L.  R. 

(Eng.)   352,  65  J.  P.  371 — 118. 
v.  Heath  Laundry  Co.  [1910]  1  K.  B. 

(Eng.)    543,  79  L.  J.  K.  B.  N.  S. 

395,  102  L.  T.  N.  S.  210,  26  Times 

L.   R.   326,   54   Sol.   Jo.  392,  3   B. 

W.  C.  C.  200 116,  152,  374. 

v.  White  Bros.   [1899]  1  Q.  B.   (Eng.) 

1005,  68  L.  J.  Q.  B.  N.  S.  507,  47 

Week.  Rep.  512,  80  L.  T.  K  S.  344, 

15  Times  L.  R.  263 — 121-123. 
Simpson  v.  Byrne  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)  240,  47  Ir.  Law  Times,  27, 

6  B.  W.  C.  C.  455 — 138. 

v.  Ebbw  Vale  Steel,  Iron  &  Coal  Co. 

[1905]   1  K.  B.    (Eng.)   453,  74  L. 

J.  K.  B.  N.  S.  347,  53  Week.  Rep. 

390,  92  L.  T.  N.  S.  282,  21  Times 

L.  R.  209 115,  116. 

v.  Shepard.    See  Minnesota  Rate  Cases. 
Sinclair  v.  Carlton  [1914]  2  Scot.  L.  T.  105, 

[1914]  S.  C.  871,  51  Scot.  L.  R.  759, 

7  B.  W.  C.  C.  937 — 44. 

v.  Maritime  Pass.  Assur.  Co.  3  El.  &  Bl. 

478,  30  L.  J.  Q.  B.  N.  S.  77,  7  Jur. 

N.  S.  367,  4  L.  T.  N.  S.  15,  9  Week. 

Rep.  342 — 278. 
Sinnes  v.  Daggett  (1914)  80  Wash.  673,  142 

Pac.  5 — 259,  272. 
Sinnot  v.  Davenport,  22  How.  227,  16  L.  ed. 

243 — 449. 
Skailes  v.  Blue  Anchor  Line  [1911]  1  K.  B. 

(Eng.)    360,  80  L.  J.  K.  B.  N.  S. 

442,  103  L.  T.  N.  S.  741,  27  Times 

L.  R.  119,  55  Sol.  Jo.  107,  4  B.  W. 

C.  C.  16,  [1910]  W.  N.  267 — 121, 

160. 
Skates  v.  Jones  [1910]  2  K.  B.  (Eng.)  903, 

79  L.  J.  K.  B.  N.  S.  1168,  103  L. 

T.  N.  S.  408,  26  Times  L.  R.  643,  3 

B.  W.  C.  C.  460 — 97. 
Skeggs  v.  Keen  (1899)   1  W.  C.  C.  (Eng.) 

35 82. 

v.  Keen  (1899)  1  W.  C.  C.  (Eng.)  119 

— 183. 
Slade  v.  Taylor  [1915]  W.  C.  &  Ins.  Rep. 

(Eng.)   53,  8  B.  W.  C.  C.  65 42, 

314. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


529 


Slater  v.  Blyth  Ship  Bldg.  &  Dry  Docks  Co. 
[1914]  W.  C.  &  Ins.  Rep.  (Eng.) 
39,  7  B.  W.  C.  C.  193 — 142. 

Slavin  v.  Train  (1911;  Ct.  Sess.)  49  Scot. 
L.  R.  93,  [1912]  W.  C.  Rep.  167, 

5  B.  W.  C.  C.  525 82. 

Sligh  v.  Kirkwood,  237  U.  S.  52,  59  L.  ed. 

835,  35  Sup.  Ct.  Rep.  501 460. 

Smale  v.  Wrought  Washer  Mfg.  Co.  (1915) 

160  Wis.  331,  150  N.  W.  803 — 225, 

274,  360. 
Small  v.  M'Cormick  (1899)  1  Sc.  Sess.  Cas. 

5th  series,  883,  36  Scot.  L.  R.  700,  7 

Scot.'L.  T.  35 149,  153,  373. 

Smith,  Re   (1911)   17  West  L.  Rep.   (Can.) 

550 113. 

v.  Abbey    Park    Steam    Laundry    Co. 

(1909)  2  B.  W.  C.  C.  (Eng.)  142 

79. 
v.  Alabama,  124  U.  S.  465,  31  L.  ed. 

508,  1  Inters.  Cora.  Rep.  804,  8  Sup. 

Ct.  Rep.  564 452. 

v.  Buxton  (1915)   84  L.  J.  K.  B.  N.  S. 

(Eng.)    697,  112  L.   T.   N.   S.  893, 

[1915]   W.   C.   &  Ins.  Rep.   126,  8 

B.  W.  C.  C.  196 — 120,  365. 

v.  Coles  [1905]  2  K.  B.  (Eng.)  827,  54 
Week.  Rep.  81,  22  Times  L.  R.  5, 
75  L.  J.  K.  B.  N.  S.  16,  93  L.  T.  N. 
S.  754 — 192,  368. 

v.  Cope  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)  460,  6  B.  W.  C.  C.  569 — 
122 

v.  Davis  [1915]  A.  C.  (Eng.)  528,  31 
Times  L.  R.  356,  [1915]  W.  N.  152, 
59  Sol.  Jo.  397 — 160. 

v.  Fife  Coal  Co.  [1913]  S.  C.  663, 
[1913]  W.  C.  &  Ins.  Rep.  343,  50 
Scot.  L.  R.  455,  6  B.  W.  C.  C.  435, 
[1914]  A.  C.  (Eng.)  723,  83  L.  J. 
P.  C.  N.  S.  1359,  111  L.  T.  N.  S. 
477,  [1914]  S.  C.  40,  51  Scot.  L.  R. 
496,  [1914]  W.  CA  Ins.  Rep.  235, 
30  Times  L.  R.  502,  58  Sol.  Jo. 
533,  [1914]  W.  N.  196,  7  B.  W.  C. 

C.  253 54. 

v.  Foster    [1913]    W.    C.    &   Ins.   Rep. 

(Eng.)    420,  6  B.  W.  C.  C.  499 

179. 
v.  General  Motor  Cab  Co.  [1911]  A.  C. 

(Eng.)    188,  80  L.  J.  K.  B.  N.  S. 

839,  105  L.  T.  N.  S.  113,  27  Times 

L.  R.  370,  55  Sol.  Jo.  439,  4  B.  W. 

C.  C.  249,  1  N.  C.  C.  A.  576 117. 

v.  Hardman  [1913]  W.  C.  &  Ins.  Rep. 

(Eng.)   459,  6  B.  W.  C.  C.  719 

181. 
v.  Horlock   [1913]   W.  C.  &  Ins.  Rep. 

(Eng.)    441,  109   L.  T.   N.  S.   196, 

6  B.  W.  C.  C.  638 117. 

v.  Hughes    (1905;    C.   C.)    8  W.   C.   C. 

(Eng.)  115— -165. 
v.  Industrial  Acci.  Commission   (1915) 

26  Cal.  App.  560,  147  Pac.  601 — 

270,  452,  463. 
v.  Lancashire  &  Y.  R.  Co.  [1899]  1  Q. 

B.  141,  68  L.  J.  Q.  B.  N.  S.  51,  47 

Week.  Rep.  146,  79  L.  T.  N.  S.  633, 

15  Times  L.  R.  64 — 46,  180,  [21] 

485,   [22]  486. 


Smith  v.   Morrison    (1911)    5  B.  W.  C.  C 

(Eng.)    161 44. 

v.  Pearson  (1909;  C.  C.)  2  B.  W.  C.  C. 

(Eng.)  468 86,  92. 

v.  Petrie  [1913]  W.  C.  &  Ins.  Rep.  378, 

50  Scot.  L.  R.  749,  6  B.  W.  C.  C. 

833 — 167. 
v.  Price  (1915)  168  App.  Div.  421,  153 

N.  Y.  Supp.  221 — 218. 
v.  South      Normanton      Colliery      Co. 

[1903]   1  K.  B.   (Eng.)   204,  72  L. 

J.  K.  B.  N.  S.  76,  67  J.  P.  381,  51 

Week.  Rep.  209,  88  L.  T.  N.  S.  5, 

19  Times  L.  R.  128 55. 

v.  Standard  Steam  Fishing  Co.  [1906] 

2  K.  B.  (Eng.)  275,  75  L.  J.  K.  B. 

N.  S.  640,  54  Week.  Rep.  582,  95 

L.  T.  N.  S.  42,  22  Times  L.  R.  578, 

8  W.  C.  C.  76 205,  210. 

v.  Stanton    Ironworks     Co.     Collieries 

[1913]  W.  C.  Ins.  Rep.  (Eng.)  186, 

6  B.  W.  C.  C.  239 49. 

v.  Travelers'   Ins.   Co.   219    Mass.   147, 

L.R.A.1915B,  872,  106  X.  E.  607 — 

278. 
v.  Turner    (1901;    C.   C.)    3   W.   C.   C. 

(Eng.)  143 — 206. 
v.  Western  States  Portland  Cement  Co. 

(1915)  94  Kan.  501,  146  Pac.  1026 

— 223. 
Smith's  Dock  Co.  v.  Readhead  [1912]  2  K 

B.  (Eng.)  323,  81  L.  J.  K.  B.  N.  S. 

808,  106  L.  T.  N.  S.  843,  28  Times 

L.  R.  397,  [1912]  W.  C.  Rep.  217, 

5  B.  W.  C.  C.  449,   [1912]   W.  N. 

131 — 103,  362. 
Smithers  v.  Wallis   [1903]   1  K.  B.   (Eng.) 

200,  72  L.  J.  K.  B.  N.  S.  57,  67  J. 

P.  381,  51  Week.  Rep.  261,  87  L. 

T.  N.  S.  556,  19  Times  L.  R.  Ill 

192. 
Smolensk!  v.  Eastern  Coal  Dock  Co.  (1915) 

-  X.  J.  L.  — ,  93  Atl.  85—260. 
Sneddon    v.    Addie    &    Sons'    Colliery    Co. 

(1905)   6  Sc.  Sess.  Cas.  5th  series, 

992,  41   Scot.   L.  R.  826,  12  Scot. 

L.  T.  229 — 126,  371. 
v.  Greenfield  Coal  &  Brick  Co.  [1909- 

10]  S.  C.  362,  47  Scot.  E.  R.  337,  3 

B.  W.  C.  C.  557 52,  338. 

Snell  v.  Bristol  Corp.  [1914]  2  K.  B.  (Eng.) 

291,  83  L.  J.  K.  B.  X.  S.  353,  110 

L.  T.  X.  S.  563,  [1914]  W.  X.  47, 

[1914]    W.  C.   &   Ins.  Rep.  103,  7 

B.  W.  C.  C.  236 — 142,  151. 

v.  Gross,  Sherwood  &  Heald  [1913]  W. 

C.  &  Ins.  Rep.  (Eng.)  141,  6  B.  W. 
C.  C.  242 — 183. 

Snelling  v.  Norton  Hill  Colliery  Co.  [1913] 

W.  C.  &  Ins.  Rep.  (Eng.)  497,  109 

L.  T.  X.  S.  81,  6  B.  W.  C.  C.  506 

86,  88. 
Snykus  v.  Big  Muddy  Coal  &  I.  Co.  (1914) 

190  Til.  App.  602 — 222. 
Sorensen  v.  Gaff  [1912]  S.  C.  1163,  49  Scot. 

L.  R.  896,  6  B.  W.  C.  C.  279 — 149. 
Southall    v.    Cheshire    County    News    Co. 

(1912)  5  B.  W.  C.  C.  (Eng.)  251 — 

134,  336,  339. 
Southern  P.  Co.  v.  Pillsbury  (1915)  —  Cal 

— ,   L.R.A.— ,  — ,   151    Pac.   277 

463. 
34 


530 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Southern  R.   Co.  v.   Railroad  Commission, 

236   U.   S.   439,   59   L.  ed.   661,  35 

Sup.  Ct.  Rep.  305 454,  460. 

v.  Reid,  222  U.  S.  424,  56  L.  ed.  257,  32 

Sup.  Ct.  Rep.  140 453. 

Southhook    Fire-Clay    Co.    v.     Laughland 

[1908]    S.   C.   831,   45   Scot.   L.  R. 

664,  1  B.  W.  C.  C.  405 166,  167. 

Spacey  v.  Dowlais  Gas  &  Coke  Co.  [1905] 

2  K.  B.  (Eng.)  879,  22  Times  L.  R. 

29,  75  L.  J.  K.  B.  N.  S.  5,  54  Week. 

Rep.  138,  93  L.  T.  N.  S.  685,  8  W. 

C.  C.  29 195,  200. 

Spence  v.  Baird  [1912]  S.  C.  343,  49  Scot. 

L.    R.    278,    5    B.    W.    C.    C.    542, 

[1912]  W.  C.  Rep.  18 33,  294. 

Spencer  v.  Harrison  (1908;  C.  C.)  1  B.  W. 

C.  C.   (Eng.)   76 — 194. 
v.  Livett  [1900]  1  Q.  B.  (Eng.)  498,  69 

L.  J.  Q.  B.  N.  S.  338,  64  J.  P.  196, 

48  Week.  Rep.  323,  82  L.  T.  N.  S. 

75,  16  Times  L.  R.  179,  2  W.  C.  C. 

112 — 202. 
Spiers  v.  Elderslie  S.  S.  Co.   [1909]   S.  C. 

1259,  46  Scot.  L.  R.  893 — 96. 
SponatsM,  Re  (1915)  220  Mass.  526,  108  N. 

E.  466,  8  N.  C.  C.  A.  1025  (reported 

in  full  herein,  p.  333) 228,  233, 

234,  241,  305,  339. 
Spooner  v.  Beckwith  (1914)  183  Mich.  323, 

149  N.  W.  971 232. 

v.  Detroit  Saturday  Night  Co.   (1915) 

—  Mich.  — ,  153  N.  W.   657    (re- 
ported in  full  herein,  p.  [17]  481) 

239,  266. 

Spottsville  v.  Western  States  Portland  Ce- 
ment Co.   (1915)   94  Kan.  258,  146 

Pac.  356 — 220,  221. 
Spratt  v.  Sweeney  &  G.  Co.  (1915)  168  App. 

Div.  403,  153  N.  Y.  Supp.  505 — 

445. 
Stack  v.  Counsell  Bros.   (1899;   C.  C.)   106 

L.  T.  Jo.   (Eng.)    342,  1  W.  C.  C. 

133 — 199. 
Staley  v.  Illinois  C.  R.  Co.  (1914)  186  111. 

App.  593 — 263. 
v.  Illinois  C.  R.  Co.  (1914)  268  111.  356, 

109    N.    E.    342    (reported    in    full 

herein,  p.  450) 463,  464. 

Stalker  v.  Wallace  (1900)  2  Sc.  Sess.  Cas. 

5th  series,  1162,  37  Scot.  L.  R.  898, 

8  Scot.  L.  T.  134 — 212. 
Standard  Acci.  Ins.  Co.,  Re,  220  Mass.  526, 

108    N.    E.    466    (reported    in   full 

herein,  p.  333) — 228,  233,  234,  241, 

305,  339. 

Standing  v.  Eastwood   [1912]   W.  C.  Rep. 
(Eng.)    200,  106   L.  T.  N.   S.  477, 

5  B.  W.  C.  C.  268 — 118. 
Stanland  v.  Northeastern  Steel  Co.   (1906) 

23  Times  L.  R.  (Eng.)   1 — 183. 
Stapelton    v.    Dinnington    Main    Coal    Co. 
(1912)  107  L.  T.  N.  S.  (Eng.)  247, 

5  B.  W.  C.  C.  602 — 68. 
State   v.   Business   Property   Security   Co. 

(1915)   —  Wash.  — ,  152  Pac.  334 

— 219. 
v.  Chicago,  M.  &  P.  S.  R.  Co.    (1914) 

80  Wash.  435,  141  Pac.  897 — 265. 
v.  Corbett,  57  Minn.  345,  24  L.R.A.  498, 

4  Inters.  Com.  Rep.  694,  59  N.  W. 

317 — 402. 


State  v.  Mountain  Timber  Co.   (1913)    75 

Wash.  581,  L.R.A.— ,  — ,  135  Pac. 

645,  4  N.  C.  C.  A.  811 359,  410, 

418,  425,  427. 
v.  Stewart,  52  Wash.  61,  100  Pac.  153, 

17  Ann.  Cas.  411 359. 

State  ex  rel.  Coffey  v.  Chittenden,  112  Wis. 

569,  88  N.  W.  587 369. 

Milwaukee  Medical  College  v.  Chitten- 
den, 127  Wis.  468,  107  N.  W.  500 

— 369. 
Davis-Smith  Co.  v.  Clausen,  65  Wash. 

156,  37  L.R.A.(N.S.)  466,  117  Pac. 

1101,  2  N.  C.  C.  A.  823,  3  N.  C.  C. 

A.   599 297,   359,   395,   399,   409, 

410,  416,  422,  427,  428. 
Yaple  v.  Creamer    (1911)    85  Ohio  St. 

349,  39  L.R.A.  (N.S.)  694,  97  N.  E. 

602,  1  N.  C.  C.  A.  30 — 395,  399, 

400,   410,   414,   415,   423,   425-427. 
Jarvis  v.   Daggett,   --  Wash.   — ,   151 

Pac.  648    (reported  in  full  herein, 

p.  446) 461. 

Carlson  v.  District  Ct.  (1915)  —  Minn. 

— ,  154  K  W.  661 — 216,  253. 
Crookston  Lumber  Co.  v.  District  Ct. 

(1915)  —  Minn.  — ,  154  N.  W.  509 

— 250,  251,  253,  254. 
Duluth  Brewing  &  Malting  Co.  v.  Dis- 
trict Ct.  (1915)  129  Minn.  176,  151 

N.    W.    912 — 216,    227,    232,    238, 

346. 
Duluth  Diamond  Drilling  Co.  v.  District 

Ct.   (1915)    129  Minn.  423,  152  N. 

W.  838 — 245,  260,  262,  271. 
Garwin    v.    District    Ct.     (1915)     129 

Minn.  156,  151  N.  W.  910,  8  N.  C. 

C.  A.  1052 256. 

Gaylord     Farmers'     Co-op.     Creamery 

Asso.  v.  District  Ct.  128  Minn.  486, 

151  N.  W.  182 — 253,  261. 
Kennedy   v.    District    Ct.    (1915)    129 

Minn.  91,  151  N.  W.  530,  8  N.  C. 

C.   A.   478 — 257. 

Nelson -Spelliscy  Implement  Co.  v.  Dis- 
trict Ct.  (1914)  128  Minn.  221,  150 

N.  W.  623 — 266,  410,  426. 
Northfield    v.    District    Ct.    (1915)    — 

Minn.  — ,  155  N.  W.  103 — 215,  245, 

248. 
People's    Coal    &    Ice    Co.    v.    District 

Ct.     (1915)     129    Minn.    502,    153 

N.  W.  119  (reported  in  full  herein, 

p.  344) — 228,  241,  347. 
Splady  v.  District  Ct.  (1915)  128  Minn. 

338,  151  N.  W.  123 — 215,  249. 
Virginia   &   R.   L.   Co.   v.   District   Ct. 

(1914)    128   Minn.   43,   150   N.   W. 

211,  7  N.  C.  C.  A.  1076 — 215,  247. 
Beebe  v.  McMillan  (1913)  36  Nev.  383, 

136  Pac.  108 — 265. 
Baker  River  &  S.  R.  Co.  v.  Nichols,  51 

Wash.   619,  99   Pac.   876 435. 

Pratt  v.  Seattle  (1913)   73  Wash.  396, 

132  Pac.  45 — 265,  410,  426. 
N.  C.  Foster  Lumber  Co.  v.  Williams, 

123  Wis.  61,  100  N.  W.  1048 — 369. 
Statham  v.  Galloways  (1900;  C.  C.)  109  L. 

T.  Jo.   (Eng.)   133,  2  W.  C.  C.  149 

— 62. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


531 


Staveley  Coal  &  I.  Co.  v.  Elson  [1912]  W. 

C.  Rep.   (Eng.)  228,  5  B.  W.  C.  C. 

301 — 173. 
Stedman  v.  United  States  Mut.  Acci.  Asso. 

See  Bacon  v.  United  States  Mut. 

Acci.  Asso. 
Steel  v.  Cammell,  L.  &  Co.  [1905]  2  K.  B. 

232,  74  L.  J.  K.  B.  N.  S.  610,  53 

Week.  Rep.  612,  93  L.  T.  N.  S.  357, 

21   Times  L.  R.  490,  2  Ann.   Cas. 

142 35,   278,    286,    290. 

v.  Oakbank  Oil  Co.   (1902)   5  Sc.  Sess. 

Cas.  5th  series,  244,  40  Scot.  L.  R. 

205,  10  Scot.  L.  T.  505 166. 

Steers   v.   Dunnewald    (1913)    85  N.  J.  L. 

449,   89   Atl.   1007,  4  N.  C.  C.  A. 

676 231,  242. 

Stephens  v.  Dudbridge  Ironworks  Co.  [1904] 

2  K.  B.   (Eng.)  225,  73  L.  J.  K.  B. 
N.  S.  739,  68  J.  P.  437,  52  Week. 
Rep.   644,  90  L.  T.  N.  S.  838,  20 
Times  L.  R.  492,  6  W.  C.  C.  48 — 
74,  82. 

v.  Vickers    [1913]    W.   C.   &  Ins.  Rep. 

(Eng.)   454,  6  B.  W.  C.  C.  469 — 

182. 
Stephenson   v.    Rossall    Steam   Fishing   Co. 

(1915)  84  L.  J.  K.  B.  N.  S.  (Eng.) 

677,  112  L.  T.  N.  S.  891,  [1915]  W. 

C.  &  Ins.  Rep.  121,   [1915]   W.  N. 

70,  8  B.  W.  C.  C.  209 — 106. 
Stevens  v.  General  Steam  Nav.  Co.  [1902] 

1  K.  B.  (Eng.)   890,  72  L.  J.  K.  B. 
N.  S.  417,  67  J.  P.  415,  51  Week. 
Rep.  578,  88  L.  T.  N.   S.  542,   19 
Times  L.  R.  418,  5  W.  C.  C.  95 — 
207. 

v.  Insoles    [1912]    1   K.   B.    (Eng.)    36, 

[1911]   W.  N.  205,  81  L.  J.  K.  B. 

N.  S.  47,  105  L.  T.  N.  S.  617 — 85. 
Stevenson  v.  Illinois  Watch  Case  Co.  (1914) 

186  111.   App.  418,  5  N.   C.  C.  A. 

858 — 252,  256. 
Stewart  v.  Baltimore  &  0.  R.  Co.  168  U.  S. 

445,   42   L.   ed.   537,   18    Sup.    Ct. 

Rep.  105 433. 

v.  Darngavil    Coal    Co.    (1902)    4    Sc. 

Sess.  Cas.  5th  series,  425,  39  Scot. 

L.  R.  302,  9  Scot.  L.  T.  378 211. 

v.  Dublin    &    G.    Steam    Packet    Co. 

(1902)   5  Sc.  Sess.  Cas.  5th  series, 

57,  40  Scot.  L.  R.  41,  10  Scot.  L. 

T.  343 — 211. 
v.  Wilsons  &  C.  Coal  Co.   (1902)   5  Sc. 

Sess.  Cas.   5th   series    (Scot.)    120 

32,  298. 

Stickley's  Case   (1914)   219  Mass.  513,  107 

N.  E.  350 255,  268,  322,  380. 

Stinton  v.  Brandon  Gas  Co.   [1912]  W.  C. 

Rep.  (Eng.)  132,  5  B.  W.  C.  C.  426 

87. 

Stoll  v.  Pacific  S.  S.  Co.  (1913)  205  Fed.  169, 

3  N.  C.  C.  A.  606 410,  428,  440, 

463. 

Stormount  v.   Workman,  C.  &  Co.    [1914] 

2  I.  R.   (Ir.)   532,  note 184. 

Strain  v.  Sloan  (1901)  3  Sc.  Sess.  Cas.  5th 

series,  663,  38   Scot.  L.   T.  475,  8 

Scot.  L.  T.  498 194,  203. 

Strannigan  v.  Baird  (1904)  6  Sc.  Sess.  Cas. 
5th  series,  784,  41  Scot.  L.  R.  609, 
12  Scot.  L.  T.  152 — 161. 


Streeter  v.  Courtney  (1902;  C.  C.)   114  L. 

T.  Jo.   (Eng.)   217,  5  W.  C.  C.  123 

— 213. 
Stroewer  v.  Aerogen  Gas  Co.  [1913]  W.  C. 

&  Ins.  Rep.  (Eng.)  578,  6  B.  W.  C. 

C.  57f 181. 

Stronge  v.  Hazlett  (1910)  44  Ir.  Law  Times, 

10,  3   B.  W.  C.  C.   581 — 88. 
Stuart  v.  Nixon  [1900]  2  Q.  B.  (Eng.)  95, 

82  L.  T.  N.  S.  489,  69  L.  J.  Q.  B. 

N.  S.  598,  48  Week.  Rep.  598,  16 

Times  L.  R.  335 — 155. 
v.  Nixon    [1901]    A.   C.    (Eng.)    79,   70 

L.  J.  Q.  B.  N.  S.  170,  65  J.  P.  388, 

49  Week.  Rep.  636,  84  L.  T.  N.  S, 

65,  17  Times  L.  R.  156,  3  W.  C.  C. 

1 — 207,   210. 
Sturges  v.   Crowinshield,  4  Wheat.   122,  4 

L.    ed.    529 459. 

Sudell  v.  Blackburn  Corp.   (1910)   3  B.  W. 

C.  C.  (Eng.)  227 117. 

Suleman  v.  The  Ben  Lomond  (1909;  C.  C.) 

126  L.  T.  Jo.  (Eng.)  308,  2  B.  W.  C. 

C.  499 — 149. 
Sullivan,  Re  (1914)  218  Mass.  141,  105  N. 

E.  463,  5  N.  C.  C.  A.  735  (reported 

in  full  herein,  p.  378) — 215,  255, 
Summerlee  Iron  Co.  v.  Freeland  [1913]  A. 

C.  (Eng.)  221,  82  L.  J.  P.  C.  N.  S. 

102,  108  L.  T.  N.  S.  465,  29  Times 

L.  R.  277,  57  Sol.  Jo.  281,   [1913] 

W.   X.    34,    [1913]    W.    C.    &    Ins. 

Rep.  302,  6  B.  W.  C.  C.  255,  [1913] 

S.  C    (H.  L.)  3 — 80. 
Sundine,  Re,  218  Mass.  1,  105  N.  E.  433,  5 

X.  C.  C.  A.  616   (reported  in  full 

herein,    p.    318) — 233,    236,    237r 

247,  320. 
Superior  v.  Industrial   Commission    (1915) 

160   Wis.    541,   152   N.   W    151.   8 

N.  C.  C.  A.  960 — 239. 
Susznik  v.  Alger  Logging  Co.  (1915)  —  Or. 

— ,  147  Pac.  922 — 246. 
Sutton  v.  Great  Northern  R.  Co.  [1909]  2 

K.  B.    (Eng.)    791,  79  L.  J.  K.  B. 

X.  S.  81,  101  L.  T.  N.  S.  175,  2  B. 

W.  C.  C.  428 — 177. 
v.  Great  Northern  R.  Co.   (1910)   3  B. 

W.  C.  C.   (Eng.)    160 182. 

v.  Wauwatosa,  29  Wis.  21,  9  Am.  Rep. 

534 [17]  481. 

Swannick  v.  Congested  Dist.  Board  [1913] 

W.  C.  &  Ins.  Rep.  96,  46  Ir.  Law 

Times,  253,  6  B.  W.  C.  C.  449 — 

173. 
Swansea  Vale,  The  v.  Rice  (1911)  104  L.  T. 

N.  S.  658,  27  Times  L.  R.  440,  55 

Sol.  Jo.  497,  48  Scot.  L.  R.  1095, 

4  B.  W.  C.  C.  298 — 69,  301. 
v.  Rice  [1912]  A.  C.  (Eng.)  238,  81  L. 

J.  K.  B.  N.  S.  672,   [1912]   W.  C. 

Rep.  242,  12  Asp.  Mar.  L.  Cas.  47, 

104   L.   T.   N.   S.   658,  55   Sol.  Jo. 

497,  27  Times  L.  R.  440,  Ann.  Cas. 

1912C,   899 — 69,   301. 
Sweeney  v.  Pumpherston  Oil  Go.   (1903)   5 

Sc.  Sess.  Cas.  5th  series,  972,  40 

Scot.  L.  R.  731,  11  Scot.  L.  T.  270 

— 140,  388. 
Swinbank  v.  Bell  Bros.  (1911)  5  B.  W.  C.  C. 

(Eng.)  48 33,  294. 


532 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Symmonds  v.  King   (1915)   8  B.  W.  C.  C. 

(Eng.)    189 42,   314. 

Symon  v.  Wemyss  Coal  Co.    [1912]    S.  C. 

1239,  49  Scot.  L.  R.  921,  6  B.  W. 

C.  C.  298 49. 

Synkus  v.  Big  Muddy  Coal  &  I.  Co.  (1914) 

190  111.  App.  602 — 220. 


Taff  Vale  R.  Co.  v.  Lane  (1910)  3  B.  W.  C. 

C.  (Eng.)  297 171. 

Tallman  v.  Chippewa  Sugar  Co.  (1913)  155 

Wis.  36,  143  N.  W.  1054 215. 

Tamworth  Colliery  Co.  v.  Hall  [1911]  A.  C. 

(Eng.)  665,  105  L.  T.  N.  S.  449,  55 

Sol.  Jo.  615,  4  B.  W.  C.  C.  313 

136. 
v.  Hall   [1911]   1  K.  B.   (Eng.)   341,  80 

L.  J.  K.  B.  N.  S.  304,  103  L.  T.  N. 

S.  782,  4  B.  W.  C.  C.  107 — 136. 
Taylor  v.  Bolckow    (1911)    5  B.  W.  C.  C. 

(Eng.)    130 — 141. 
v.  Burnham  [1909]  S.  C.  704,  46  Scot. 

L.   R.   482 109. 

v.  Burnham  [1910]  S.  C.  7-05,  47  Scot. 

L.   R.   643,  3   B.   W.   C.   C.   569 

109,  114,  118. 
v.  Clark  [1914]  S.  C.  (H.  L.)  104, 

[1914]  2  Scot.  L.  T.  125,  51  Scot. 

L.  R.  740,  58  Sol.  Jo.  738,  7  B.  W. 

C.  C.  871,  [1914]  W.  N.  327,  [1914] 

W.  C.  &  Ins.  Rep.  448,  11  L.  T.  N. 

S.  882,  84  L.  J.  P.  C.  N.  S.  14, 

rev'g  [1914]  S.  C.  432,  1  Scot.  L.  T. 

336,  51  Scot.  L.  R.  418,  7  B.  W. 

C.  C.  856 141. 

v.  Cripps  [1914]  3  K.  B.  (Eng.)  989,  83 

L.  J.  K.  B.  N.  S.  1538,  7  B.  W.  C. 

C.  623,  30  Times  L.  R.  616 — 177, 

178. 
v.  George  W.  Bush  &  Sons  Co.  6  Penn. 

(Del.)  306,  12  L.R.A.(N.S.)  853,  66 

Atl.  884 — 329. 
v.  Hamstead  Colliery  Co.   [1904]   1  K. 

B.  (Eng.)    838,  73  L.  J.  K.  B.  N. 
S.  469,  68  J.  P.  300,  52  Week.  Rep. 
417,  90  L.  T.  N.  S.  363,  20  Times  L. 
R.  338 — 75. 

v.  Jones    (1907;    C.   C.)    123   L.   T.  Jo. 

(Eng.)   553,  1  B.  W.  C.  C.  3 — 60. 
v.  London  &  N.  W.  R.  Co.  [1912]  A.  C. 

(Eng.)    242,  81   L.  J.  K.   B.  N.   S. 

541,  106  L.  T.  N.  S.  354,  28  Times 

L.  R.  290,  56  Sol.  Jo.  323,  [1912]  W. 

C.  C.  95,  [1912]  W.  N.  53,  49  Scot. 
L.  R.  1020,  5  B.  W.  C.  C.  218 — 165, 
169. 

v.  Nicholson  [1915]  W.  C.  &  Ins.  Rep. 

(Eng.)  42,  8  B.  W.  C.  C.  114 — 87. 
v.  Seabrook   (1915)  —  N.  J.  L.  — ,  94 

Atl.  399 — 244,  250,  252,  262,  355. 
v.  Southern  R.  Co.  (C.  C.)  178  Fed.  380 

455. 

v.  Taylor,  232  U.  S.  363,  58  L.  ed.  638, 

34  Sup.  Ct.  Rep.  350,  6  N.  C.  C.  A. 

436 458. 

v.  The  Cecil  Syndicate  (1906)  Queensl. 

St.  Rep.  324 — 195. 
v.  Ward   (1914)   7  B.  W.  C.  C.    (Eng.) 

441 — 180. 


Taylorsen  v.  Framwellgate  Coal  &  Coke  Co. 

[1913]    W.  C.  &   Ins.  Rep.    (Eng.) 

179,  6  B.  W.  C.  C.  56 — 134,  293. 
Tench   v.   Fish    (1901;    C.   C.)    3   W.   C.  C. 

(Eng.)    140 207. 

Terlecki  v.  Strauss  (1914)  85  N.  J.  L.  454, 

89   Atl.   1023,   4   N.   C.   C.   A.   584, 

affirmed  in  86  N.  J.  L.  798,  92  Atl. 

1087 — 237. 
Thackway  v.  Connelly    (1909)    3  B.  W.  C. 

C.    (Eng.)    37 — 39. 
Thayne  v.  Gray   [1915]  W.  C.  &  Ins.  Rep. 

(Eng.)   64,  8  B.  W.  C.  C.  17 — 147. 
Thoburn  v.   Bedlington  Coal  Co.    (1911)    5 

B.  W.  C.  C.   (Eng.)   128 — 133,  292. 
Thomas  v.  Cory  Bros.  (1911)  5  B.  W.  C.  C. 

(Eng.)  5—182. 
v.  Fairbairne    (1911)    4    B.    W.    C.    C. 

(Eng.)   195 137. 

Thompson  v.  Ashington  Coal  Co.  (1901)  84 

L.  T.  N.  S.    (Eng.)   412,  17  Times 

L.  R.  345,  84  L.  T.  N.  S.  412 36, 

291,  292. 
v.  Ferraro    (1913)    57    Sol.   Jo.    (Eng.) 

479,  6  B.  W.  C.  C.  461 172. 

v.  Goold   [1910]   A.  C.    (Eng.)    409,  79 

L.  J.  K.  B.  N.  S.  905,  103  L.  T.  N. 

S.  81,  26  Times  L.  R.  526,  54  Sol. 

Jo.  599,  3  B.  W.  C.  C.  392 84,  85. 

v.  Johnson  [1914]  3  K.  B.   (Eng.)   694, 

[1914]  W.  N.  281,  137  L.  T.  Jo.  212, 

[1914]    W.  C.  &   Ins.   Rep.   333,  7 

B.  W.  C.  C.  479 — 139. 

v.  Newton  (1914)  7  B.  W.  C.  C.  (Eng.) 

703 — 148. 
v.  North-Eastern    Marine    Engineering 

Co.    (1914)   110  L.  T.  N.  S.   (Eng.) 

441,  [1914]  W.  N.  22,  [1914]  W.  C. 

&  Ins.  Rep.  13,  7  B.  W.  C.  C.  49 — 

90. 
v.  North   Eastern   Marine   Engineering 

Co.   [1903]   1  K.  B.   (Eng.)  428,  72 

L.  J.  K.  B.  N.  S.  222,  88  L.  T.  N.  S. 

239,  19  Times  L.  R.  206 — 103,  362. 
v.  Sinclair  [1906]  2  K.  B.   (Eng.)   278, 

note — 206. 
v.  Thompson,  53   Wis.   153,   10  N.   W. 

166 — 369. 
Thomson  v.  Flemington  Coal  Co.  [1911]  S. 

C.  823,  48  Scot,  L.  R.  74b,  4  B.  W. 
C.  C.  406 — 47,  318. 

Thorn    v.    Humm    (1915)    31    Times   L.    R. 

(Eng.)  194,  8  B.  W.  C.  C.  190 41. 

Thornber  v.  Durkin  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)  341,  7  B.  W.  C.  C.  548 — 145. 
Thranmere  Bay  Development  Co.  v.  Brennan 

(1909)    2  B.  W.  C.  C.    (Eng.)   403 

— 164. 
Tibbs  v.  Watts  (1909)  2  B.  W.  C.  C.  (Eng.) 

164—88,  89. 
Timmins    v.    Leeds    Forge    Co.    (1900)     16 

Times  L.  R.    (Eng.)   521,  83  L.  T. 

N.  S.  120 — 32,  298,  303. 
Timpson  v.  Mowlem  (1915)  112  L.  T.  N.  S. 

(Eng.)  885,  8  B.  W.  C.  C.  178 — 110. 
Tindall    v.    Great    Northern    S.    S.    Fishing 

Co.   (1912)   56  Sol.  Jo.    (Eng.)   720, 

5  B.  W.  C.  C.  667 — 105. 
Tischman  v.  Central  R.  Co.  (1913)  84  N.  J. 

L.  527,  87  Atl.  144,  4  N.  C.  C.  A. 

736 — 253. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


533 


Tobin  v.  Hearn   [1910]   2  I.  R.  639,  44  Ir. 

Law  Times,  197 — 49. 
Todd  v.  Caledonian  R.  Co.  (1899)  1  Sc.  Seas. 

Cas.  5th  series,  1047,  36  Scot.  L.  R. 

784,  7  Scot.  L.  T.  85 57,  75,  355. 

Tomalin  v.  S.  Pearson  &  Son  [1909]  2  K. 

B.  (Eng.)   61,  78  L.  J.  K.  B.  N.  S. 
863,  100  L.  T.  N.  S.  685,  25  Times 
L.  R.  477,  2  B.  W.  C.  C.  1 — 104, 
445. 

Tombs  v.  Bomford  (1912)  W.  C.  Rep.  (Eng.) 
229,  106  L.  T.  N.  S.  823,  5  B.  W.  C. 

C.  338 120,  366. 

Tomlin  v.  Hildreth,  65  N.  J.  L.  440,  47  Atl. 

649 — 279. 
Tomlinson  v.  Garratts  [1913]  W.  C.  &  Ins. 

Rep.  (Eng.)  416,  6  B.  W.  C.  C.  489 

— 55. 
Tong  v.  Great  Northern  R.  Co.   (1902;  Div. 

Ct.)  86  L.  T.  N.  S.   (Eng.)   802,  66 

J.  P.  677,  18  Times  L.  R.  566 101, 

361. 
Toole  v.  The  Isle  of  Erin  (1909)  3  B.  W.  C. 

C.   (Eng.)   110 — 123. 
Toombs  v.  Bomford,  106  L.  T.  N.  S.  823, 

[1912]  W.  C.  Rep.  229,  5  B.  W.  C. 

C.  338 364. 

Topping  v.  Rhind  (1904)  6  Sc.  Sess.  Cas.  5th 

series,  666,  41  Scot.  L.  R.  573,  12 

Scot.  L.  T.  88 — 212. 
Travelers'  Ins.  Co.  v.  Hallauer,  131  Wis.  371, 

111  N.  W.  527 — 369. 
Traynor  v.  Addie  (1911)  48  Scot.  L.  R.  820, 

4  B.  W.  C.  C.  357 — 55. 
Trenear  v.  Wells  (1900;  C.  C.)   3  W.  C.  C. 

(Eng.)   58 — 80,  85. 
Trigg  v.  Vauxhall  Motors  [1914]  W.  C.  & 

Ins.  Rep.  (Eng.)  251,  7  B.  W.  C.  C. 

462 40. 

Trim  Joint  Dist.  School  v.  Kelly  [1914]  A. 

C.   (Eng.)  667,  111  L.  T.  N.  S.  306, 

30  Times  L.  R.  452,  [1914]  W.  N. 

177,  83  L.  J.  P.  C.  N.  S.  220,  58 

Sol.  Jo.  493,  48  Ir.  Law  Times,  141, 

[1914]    W.  C.   &  Ins.  Rep.   359,   7 

B.  W.  C.  C.  274 31,  39,  64,  306, 

309. 
Trodden  v.  J.  McLennard  &  Sons   (1911)  4 

B.  W.  C.  C.   (Eng.)    190 — 34,  293. 
Troth  v.  Millville  Bottle  Works   (1914)   86 

N.   J.   L.   558,   91   Atl.   1031 — 222, 

426. 
Truesdell  v.   Chesapeake  &   0.  R.   Co.   159 

Ky.  718,  169   S.  W.  471 459. 

Tucker    v.    Oldbury    Urban    Dist.    Council 

[1912]  2  K.  B.  (Eng.)  317,  81  L.  J. 

K.  B.  N.  S.  668,  106  L.  T.  N.  S.  669, 

[1912]  W.  C.  Rep.  238,  [1912]  W. 

N.  96,  5  B.  W.  C.  C.  296 135. 

Tullock  v.  Waygood  [1906]  2  K.  B.  (Eng.) 

261,  75  L.  J.  K.  B.  N.  S.  557,  95 

L.  T.  N.  S.  223 — 200,  209. 
Turnbull  v.  Lembton  Collieries  Co.   (1900) 

82  L.  T.  N.  S.  (Eng.)  589,  16  Times 

L.  R.  369,  64  J.  P.  404 195,  209. 

v.  Vickers  (1914)  7  B.  W.  C.  C.  (Eng.) 

396 — 92. 
Turner  v.  Bell  (1910)  4  B.  W.  C.  C.  (Eng.) 

63 — 179,  301. 
v.  Brooks  (1909)  3  B.  W.  C.  C.  (Eng.) 

22 — 137. 


Turner   v.    Miller    (1910)    3    B.    W.    C.    C. 

(Eng.)    305 122. 

v.  Port  of  London  Authority  [1913]  W. 

C.    &    Ins.    Rep.     (Eng.)     123,    29 

Times  L.  R.  204,  6  B.  W.  C.  C.  23 

— 154,   157. 
v.  St.  Clair  Tunnel  Co.  Ill  Mich.  578, 

36  L.R.A.  134,  66  Am.  St.  Rep.  397, 

70  N.   W.   146,   1   Am.   Neg.  Rep. 

270 430. 

v.  The  Haulwen    [1915]   W.  C.  &  Ins. 

Rep.  (Eng.)  50,  8  B.  W.  C.  C.  242 

— 105. 
Turners  v.  Whitefield  (1905)  6  Sc.  Sess.  Cas. 

5th  series,  822,  41  Scot.  L.  R.  631, 

12  Scot.  L.  T.  131 — 126,  371. 
Turnquist  v.  Hannon  (1914)  219  Mass.  560, 

107  N.  E.  443 — 225,  226,  362,  428. 
Tutton   v.    The    Majestic    [1909]    2   K.   B. 

(Eng.)    54,   78   L.   J.   K.    B.   N.   S. 

530,  100  L.  T.  N.  S.  644,  25  Times 

L.  R.  452,  53  Sol.  Jo.  447,  2  B.  W. 

C.  C.  346 — 140,  148,  387,  388. 
Tyne  Tees  Shipping  Co.  v.  Whitlock  [1913] 

3  K.  B.  (Eng.)  642,  82  L.  J.  K.  B. 

N.   S.    1091,    109   L.   T.   N.   S.   84, 

[1913]  W.  N.  237,  57  Sol.  Jo.  716, 

[1913]    W.   C.  &   Ins.   Rep.   579,   6 

B.  W.  C.  C.  559 — 165. 
Tynron  v.  Morgan   [1909]   2  K.  B.    (Eng.) 

66 — 169. 


u 


Uhlenburgh   v.   Prince   Albert    Lumber   Co. 
(1913;    Sask.)    7    B.  W.  C.   C.   1028 

— 142. 
Ungar  v.  Howell  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)   58,  7  B.  W.  C.  C.  36 — 87. 
Union  P.  R.  Co.  v.  United  States,  99  U.  S. 

700,  25  L.  ed.  496 402. 

United   Collieries   v.   M'Ghie    (1904)    6   Sc. 

Sess.  Cas.  5th  series,  808,  41  Scot. 

L.  R.  705,  12  Scot.  L.  T.  650 — 77, 

357. 
v.  Simpson  [1909]  A.  C.  (Eng.)  383,  7* 

L.  J.  C.  P.  N.  S.  129,  101  L.  T.  N.  S. 

129,  25  Times  L.  R.  678,  53  Sol.  Jo. 

630,    [1909]    S.   C.    (H.   L.)    19,  46 

Scot.  L.  R.  780,  2  B.  W.  C.  C.  308, 

aff'g  [1908]  S.  C.  1215,  45  Scot.  L. 

R.  944,  1  B.  W.  C.  C.  289 — 135. 
United  Fuel  Gas  Co.  v.  Public  Service  Com- 

misison,  73  W.  Va.  571,  80  S.  E. 

931 — 330. 
United  States  Mut.  Acci.  Asso.  v.  Barry,  131 

U.  S.  100,  33  L.  ed.  60,  9  Sup.  Ct. 

Rep.  755^298. 
Upper  Forest  &  W.  Steel  &  Tinplate  Co.  v. 

Grey  (1910)  3  B.  W.  C.  C.  (Eng.) 

424 — 138. 
v.  Thomas  [1909]  2  K.  B.   (Eng.)   631, 

78  L.  J.  K.  B.  N.  S.  1113 — 166,  167. 


Valenti   v.   Dixon    [1906-07]    S.   C.    (Scot.), 
695 — 73. 


534 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Vamplew  v.  Parkgate  Iron  Steel  Co.  [1903] 

1  K.  B.  (Eng.)   851,  72  L.  J.  K.  B. 

N.  S.  575,  67  J.  P.  417,  51  Week. 

Rep.   691,  88  L.  T.  N.  S.  756,  19 

Times  L.  R.  421 118. 

Varesick   v.   British    Columbia   Copper   Co. 

(1906)  12  B.  C.  286 — 127. 
Vaughan  v.  Nichol  (1906)   8  Sc.  Sess.  Cas. 

(Scot.)  5th  series,  464 75,  356. 

Veazey  v.  Chattle    [1902]    1  K.  B.    (Eng.) 

494,  71  L.  J.  K.  B.  N.  S.  252,  66 

J.  P.  389,  50  Week.  Rep.  263,   85 

L.  T.  N.  S.  574,  18  Times  L.  R.  99 

199. 

Vennen  v.  New  Dells  Lumber  Co.  (1915)  — 

Wis.  — ,  154  N.  W.  640   (reported 

in  full  herein,  p.  273) 227,  229, 

231,  291. 
Vereeke  v.  Grand  Rapids   (1915)   —  Mich. 

— ,  151  N.  W.  723 — 272. 
Vickers  v.  Evans  [1910]  A.  C.   (Eng.)  444, 

79  L.  J.  K.  B.  N.  S.  954,  103  L.  T. 

N.  S.  292,  26  Times  L.  R.  548,  54 

Sol.  Jo.  651,  3  B.  W.  C.  C.  403 — 

171. 
Victoria,  The  v.  Barlow   (1911)  45  Ir.  Law 

Times,  260,  5  B.  W.  C.  C.  570 — 

113. 
Victor  Mills  v.  Shakleton   [1912]   1  K.  B. 

(Eng.)    22,    [1911]    W.   N.   197,  81 

L.  J.  K.  B.  N.  S.  34,  105  L.  T.  N. 

S.  613 173. 

Vislmey  v.  Empire  Steel  &  I.  Co.    (1915) 

—  N.  J.  L.  — ,  95  Atl.  143 257, 

264. 
Voelz  v.  Industrial  Commission   (1915)   — 

Wis.  — ,  152  N.  W.  830 235,  241, 

276,  326. 
Voorhees  v.  Smith  Schoonmaker  Co.  (1914) 

86  N.  J.  L.  500,  82  Atl.  280,  7  N. 

C.  C.  A.  646 — 228,  303. 
Vujic   v.    Youngstown    Sheet   &    Tube   Co. 

(1914)  220  Fed.  390 — 251,  252. 


W 


Waal  v.  Steel  (1915)  112  L.  T.  N.  S.  (Eng.) 

846 — 165,  171. 
Wabash  R.  Co.  v.  Hayes,  234  U.  S.  86,  58 

L.  ed.  1226,  34  Sup.  Ct.  Rep.  729, 

6  N.  C.  C.  A.  224 458,  459. 

Waddell  v.  Coltness  Iron  Co.  [1913]  W.  C. 

&  Ins.  Rep.  42,  52  Scat.  L.  R.  29, 

6  B.  W.  C.  C.  306 — 77,  357. 
Wagner  v.  Chicago  &  A.  R.  Co.  265  111.  245, 

106  N.  E.  809 459. 

v.  H.  W.  Jayne  Chemical  Co.  147  Pa. 

475,  30  Am.  St.  Rep.  745,  23  Atl. 

772 — 280. 
Wagstaff  v.   Perks    (1902)    51   Week.  Rep. 

(Eng.)   210,  87  L.  T.  N.  S.  558,  5 

W.  C.  C.  110,  19  Times  L.  R.  112 

96,  212,  213. 

Waites  v.  Franco-British  Exhibition  (1909) 

25  Times  L.  R.  (Eng.)  441 116. 

Walker,  Re  (1915)  215  N.  Y.  529,  109  N.  E. 

604 421,  461. 


Walker    v.    Crystal    Palace    Football    Club 

[1910]  1  K.  B.  (Eng.)   87,  79  L.  J. 

K.  B.  N.   S.  229,  101  L.  T.  N.  S. 

645,  26  Times  L.  R.  71,  54  Sol.  Jo. 

65,   3   B.   W.   C.   C.   53,  Ann.   Cas. 

1913C,  25 116. 

v.  Hockney  Bros.  (1909)  2  B.  W.  C.  C. 

(Eng.)  20 — 36,  290. 
v.  Lilleshall   Coal   Co.    [1900]    1   Q.  B. 

(Eng.)   488,  81  L.  T.  N.  S.  769,  69 

L.  J.  Q.  B.  N.  S.  192,  64  J.  P.  85, 

48  Week.  Rep.  257,  16  Times  L.  R. 

108 33,  35,  278,  294. 

v.  Mullins    (1908)    42   Ir.   Law   Times, 

168,  1  B.  W.  C.  C.  211 71,  293. 

v.  Murray   [1911]    S.  C.   825,  48   Scot. 

L.  R.  741,  4  B.  W.  C.  C.  409 39. 

Wallace  v.  Fife  Coal  Co.  [1909]  S.  C.  (Scot.) 

682 — 163. 
v.  Glenboig  Fire  Clay  Co.  [1907]  S.  C. 

(Scot.)   967,  cited  in  2  Mews'  Dig. 

(1898-07)  Supp.  1547 75,  355. 

v.  Hawthorne  [1908]  S.  C.  713,  45  Scot. 

L.  R.  547 — 128. 
Wallis  v.  M'Neice  (1912)  46  Ir.  L.  T.  202,  6 

B.  W.  C.  C.  445 148. 

v.  Soutter  [1915]  W.  N.  (Eng.)  68,  59 

Sol.  Jo.  285,   [1915]   W.  C.  &  Ins. 

Rep.  113,  8  B.  W.  C.  C.  130 — 111, 

191. 
Walsh  v.  Hayes   (1909)   43  Ir.  Law  Times, 

114 — 97. 
v.  Lock  &  Co.   (1914)    110  L.  T.  N.  S. 

(Eng.)    452,    [1914]    W.   C.  &   Ins. 

Rep.  95,  7  B.  W.  C.  C.  117 — 140, 

388. 
v.  New  York  &  N.  E.  R.  Co.  160  Mass. 

571,  39  Am.  St.  Rep.  514,  36  N.  E. 

584 434. 

v.  Scanlan    (1914)    48   Ir.  Law   Times, 

234,  8  B.  W.  C.  C.  414 180. 

v.  Waterford    Harbour   Comrs.    (1914) 

W.   C.    &   Ins.   Rep.   16,  47    Ir.   L. 

Times,  263,  7  B.  W.  C.  C.  960 119. 

Walters  v.  Staveley  Coal  &  I.  Co.   (1911; 

H.  L.)   105  L.  T.  N.  S.  (Eng.)   119, 

55  Sol.  Jo.  579,  4  B.  W.  C.  C.  303 

62,  332. 

Walton  v.  South  Kirby,  F.  &  H.  Colliery 

(1912)  107  L.  T.  N.  S.  (Eng.)  337, 

5  B.  W.  C.  C.  640 — 145. 
v.  Tredegar  Iron  &  Coal  Co.  [1913]  W. 

C.  &  Ins.  Rep.  (Eng.)  457,  6  B.  W. 
C.  C.  592 — 61,  331. 

Walz  v.  Holbrook  T.  &  R.  Corp.  (1915)  — 
App.  Div.  — ,  155  N.  Y.  Supp.  703 
— 249. 

War  by  v.  Plaistowe  (1910)  4  B.  W.  C.  C. 
(Eng.)  67 — 161. 

Ward  v.  London  &  N.  W.  R.  Co.  (1901;  C. 

C.)  3  W.  C.  C.  (Eng.)  192 — 137. 
v.  Miles   (1911)   4  B.  W.  C.  C.    (Eng.) 
182 — 138. 

Warden  v.  Commonwealth  Power  Co.  20  De- 
troit Leg.  News,  No.  39 313. 

Warncken  v.  Moreland  &  Son  [1909]  1  K. 
B.  (Eng.)  184,  [1908]  W.  N.  252, 
25  Times  L.  R.  129,  53  Sol.  Jo.  134, 
78  L.  J.  K.  B.  N.  S.  332,  100  L.  T. 

N.  S.  12,  2  B.  W.  C.  C.  350 140, 

386,  388. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


535 


Warner  v.  Couchman  [1911]  1  K.  B.  (Eng.) 
351,  80  L.  J.  K.  B.  N.  S.  526,  103 
L.  T.  N.  S.  693,  [1910]  W.  N.  266, 
27  Times  L.  R.  121,  55  Sol.  Jo.  107, 
4  B.  W.  C.  C.  32,  1  N.  C.  C.  A.  51, 
aff'd  in  H.  L.  [1911]  W.  N.  220,  81 
L.  J.  K.  B.  N.  S.  45,  28  Times  L. 

R.  58,  56  Sol.  Jo.  70 43. 

v.  Couchman  [1912]  A.  C.  (Eng.)  35,  81 
L.  J.  K.  B.  N.  S.  45,  105  L.  T.  N. 
S.  676,  28  Times  L.  R.  58,  56  Sol. 
Jo.  70,  49  Scot.  L.  R.  681,  5  B.  W. 
C.  C.  177 31,  240,  281,  308. 

Warnock  v.  Glasgow  Iron  &  Steel  Co.  (1904) 
6  Sc.  Sess.  Cas.  (Scot.)  5th  series, 
584 — 295. 

v.  Glasgow  Iron  &  Steel  Co.  (1904)  6 
Sc.  Sess.  5th  series  (Scot.)  474 — 
34. 

Warren  v.   Hedley's  Colliery  Co.    (1913)    6 

B.  W.  C.  C.  (Eng.)   136 46. 

v.  Roxburgh  (1912)  106  L.  T.  N.  S. 
(Eng.)  555,  5  B.  W.  C.  C.  263, 
[1912]  W.  C.  Rep.  306 — 177,  178, 
188. 

Warwick  S.  S.  Co.  v.   Callaghan    (1912)    5 

B.  W.  C.  C.  (Eng.)  283 — 141. 
Wasilewski  v.  Warner  Sugar  Refinery  Co. 

(1914)    87    Misc.    156,    149    N.    Y. 

Supp.  1035 221,  428. 

Wassell  v.  Russell  (1915)  112  L.  T.  N.  S. 
(Eng.)  902, '[1915]  W.  C.  &  Ins. 
Rep.  88,  [1915]  W.  N.  69,  8  B.  W. 

C.  C.  230 — 86,  89,  91. 

Watkins  v.  Guest  [1912]  W.  C.  Rep.  (Eng.) 

150,  106  L.  T.  N.  S.  818,  5  B.  W. 

C.  C.  307 41,  52,  53. 

Watkinson  v.  Crouch   (1899;  C.  C.)   107  L. 

T.  Jo.   (Eng.)  328,  1  W.  C.  C.  137 

— 201,  209. 
Watson    v.    Beardmore    [1914]    S.   C.    718, 

[1914]   2  Scot.  L.  T.  481,  51  Scot. 

L.  R.  621,  7  B.  W.  C.  C.  913 170. 

v.  Butterley  Co.    (1902;  C.  C.)    114  L. 

T.  Jo.    (Eng.)    178,  5  W.  C.  C.  51 

— 77,  357. 
v.  Sherwood  (1909;  C.  C.)  127  L.  T.  Jo. 

(Eng.)   86,  2  B.  W.  C.  C.  462 47. 

Watters  v.  Clover    (1901)    18  Times  L.  R. 

(Eng.)  60 156. 

v.  P.  E.  Kroehler  Mfg.  Co.   (1914)   187 

111.  App.  548,  8  N.  C.  C.  A.  352 

256. 
Watts  v.  Logan   [1914]   W.  C.  &  Ins.  Rep. 

(Eng.)   48,  7  B.  W.  C.  C.  82 — 164. 
Weavings  v.  Kirk   [1904]    1  K.  B.    (Eng.) 

213,   73   L.  J.  K.  B.  N.   S.   77,   68 

J.  P.  91,  52  Week.  Rep.  209,  89  L. 

T.  N.  S.  577,  20  Times  L.  R.  152 

— 211,  212. 
Webber  v.  Wansbrough  Paper  Co.    (1914; 

H.  L.)    137   L.  T.  Jo.    (Eng.)    237, 

[1914]  W.  N.  290,  111  L.  T.  N.  S. 

658,  30  Times   L.   R.   615,  58   Sol. 

Jo.  685,  7  B.  W.  C.  C.  795,  rev'g 

the    ct.    of    app.    [1913]    3    K.    B. 

(Eng.)    615,  82  L.  J.  K.  B.  N.  S. 

1058,  109  L.  T.  N.  S.  129,  29  Times 

L.  R.  704,   [1913]  W.  N.  236,  6  B. 

W.  C.  C.  583 51. 


Weber  v.  American  Silk  Spinning  Co.  (1915) 

-  R.  I.  — ,  95  Atl.  603 255,  258, 

266. 

Webster  v.  Cohen  Bros.  (1913)  108  L.  T.  N. 

S.  (Eng.)  197,  29  Times  L.  R.  217, 

[1913]   W.  C.  &  Ins.  Rep.  268,  57 

Sol.  Jo.  244,  6  B.  W.  C.  C.  92 91. 

v.  London  &  N.  W.  R.  Co.  (1901;  C.  C.) 

3  W.  C.  C.  (Eng.)  52 80. 

v.  Sharp  [1904]  1  K.  B.  (Eng.)  218,  73 

L.  J.  K.  B.  N.  S.  141,  68  J.  P.  140, 

52  Week.  Rep.  275,  89  L.  T.  N.  S. 

627,  20  Times  L.  R.   121,  aff'd   in 

[1905]  A.  C.  284,  74  L.  J.  K.  B.  N. 

S.  776,  92  L.  T.  N.  S.  373 — 141. 
Weekes  v.  Stead  [1914]  W.  N.   (Eng.)  263, 

30  Times  L.  R.  586,  58  Sol.  Jo.  633, 

137  L.  T.  Jo.  180,  [1914]  W.  C.  & 

Ins.  Rep.  434,  83  L.  J.  K.  B.  N.  S. 

1542,  111  L.  T.  N.  S.  693,  7  B.  W. 

C.  C.  398,  6  N.  C.  C.  A.  1010 — 64, 

309. 
Weigliill  v.  South  Hetton  Coal  Co.  [1911]  2 

K.  B.   (Eng.)   757,  note 46,  78. 

Weir  v.  North  "British  R.  Co.  (1912)  49  Scot. 

L.  R.  772,  [1912]   S.  C.  1073,  5  B. 

W.  C.  C.  595 — 169. 
v.  Petrie    (1900)    2   Sc.  Sess.  Cas.   5th 

series,  1041,  37  Scot.  L.  R.  795,  8 

Scot.  L.  T.  75 — 200. 
Wellington  v.  Boston  &  M.  R.  Co.  158  Mass. 

185,  33  N.  E.  393 — 280. 
Wells    v.    Cardiff    Steam    Coal    Collieries 

(1909)  3  B.  W.  C.  C.  (Eng.)  104 

141. 
Wendt  v.  Industrial  Ins.  Commission  (1914) 

80  Wash.  Ill,  141  Pac.  311,  5  N. 
C.  C.  A.  790 216,  219,  239. 

Westcott  &  L.  Lines  v.  Price  [1912]  W.  C. 

Rep.  (Eng.)  280,  5  B.  W.  C.  C.  430 

171. 

Western  Indemnity  Co.  v.  Pillsbury  (1915) 

-  Cal.  — ,  151  Pac.  398 — 214,  231, 
240,  267,  269,  309,  420,  421,  424. 

West  Jersey  Trust  Co.  v.  Philadelphia  &  R. 

R.  Co.    (1915)    --  N.  J.  L.  — ,  95 

Atl.  753 — 227,  244,  355,  443,  463. 

Wheeler  v.  Contoocook  Mills  Corp.   (1915) 

77   N.   H.   551,   94   Atl.   265 217, 

237,  413. 

v.  Dawson    [1913]    W.  C.   &  Ins.  Rep. 

(Eng.)  59,  5  B.  W.  C.  C.  645-— 179. 

Whelan  v.  Great  Northern  Steam  Shipping 

Co.    [1909]    W.  N.    (Eng.)    135,  78 

L.  J.  K.  B.  N.  S.  860,  100  L.  T.  N. 

S.  913,  25  Times  L,  R.  619 — 105. 

v.  Moore  (1909)  43  Ir.  Law  Times,  205 

56. 

White  v.  Harris  (1911)  4  B.  W.  C.  C.  (Eng.) 

39 — 139. 
v.  Sheepwash    (1910)    3    B.    W.   C.    C. 

(Eng.)  382 40. 

v.  Wiseman  [1912]  3  K.  B.  (Eng.)  352, 

81  L.  J.  K.  B.  N.  S.  1195,  107  L.  T. 
N.  S.  277,  28  Times  L.  R.  542,  56 
Sol.  Jo.  703,   [1912]   W.  N.  216,  5 
B.  W.  C.  C.  654,  Ann.  Cas.  1913D, 
1021 — 153,  373. 

Whitebread  v.  Arnold  (1908)  99  L.  T.  N.  S. 
(Eng.)  103 — 60,  331. 


536 


TABLE  OF  CASES  REPORTED  AND  CITED. 


Whitehead  v.  Reader  [1901]  2  K.  B.  48,  70 

L.  J.  K.  B.  N.  S.  546,  65  J.  P.  403, 

49  Week.  Rep.  562,  84  L.  T.  N.  S. 

514,  17  Times  L.  R.  387,  3  W.  C.  C. 

40 — 53,  54,   [23]   487. 
Whiteman  v.  Clifden   [1913]   W.  C.  &  Ins. 

Rep.   (Eng.)   126,  6  B.  W.  C.  C.  49 

49. 

Whitfield  v.  Lambert  (1915)  112  L.  T.  N.  S. 

(Eng.)    803,    [1915]    W.   C.   &   Ins. 

Rep.  48,  8  B.  W.  C.  C.  91 46,  323. 

Wicks  v.  Dowell  &  Co.   (1905)  2  K.  B.  225, 

74  L.  J.  K.  B.  N.  S.  572,  53  Week. 

Rep.  515,  92  L.  T.  N.  S.  677,  21 

Times  L.  R.  487,  2  Ann.  Cas.  732 

34,  280,  294,  338. 

Wiemert  v.  Boston  Elev.  R.  Co.   (1914)  216 

Mass.    598,    104    N.    E.    360 — 230, 

322,  336. 
Wilkinson    v.    Car    &    General    Ins.    Corp. 

(1914)  110  L.  T.  N.  S.  (Eng.)  468, 
[1914]   W.  N.  31,  58   Sol.  Jo.  233 
— 84. 

v.  Frodingham  Iron  &  Steel  Co.  [1913] 
W.   C.   &   Ins.  Rep.  •  (Eng.)    335,   6 

B.  W.  C.  C.  200 — 137. 

v.  Mercer  (1914)  125  Minn.  201,  146  N. 

W.  362 — 271. 
Williams  v.  Army  &  Navy  Auxiliary  Co-op. 

Soc.  (1907)  23  Times  L.  R.   (Eng.) 

408 — 83. 
v.  Bwllfa  &  M.  D.  S.  Collieries  [1914] 

2  K.  B.    (Eng.)   30,  83  L.  J.  K.  B. 

N.    S.   442,    110    L.    T.    N.    S.   561, 
.      [1914]  W.  N.  44,  7  B.  W.  C.  C.  124 

— 167. 
v.  Caeponthren  Colliery  Co.  [1913]  W. 

C.  &  Ins.  Rep.   (Eng.)  155,  6  B.  W. 
C.  C.  122 — 183. 

v.  Duncan    (1898;    C.   C.)    1   W.   C.   C. 

(Eng.)  123 — 35,  290. 
v.  Llandudno  Coaching  &  Carriage  Co. 

(1915)  31  Times  L.  R.  (Eng.)   186, 
84   L.  J.   K.  B.  N.   S.   655,    [1915] 
W.  C.  &  Ins.  Rep.  91  [1915]  W.  N. 
52,  59  Sol.  Jo.  286   [1915]  2  K.  B. 
101,  112  L.  T.  N.  S.  848,  8  B.  W. 
C.  C.  143 — 50,  63,  352. 

v.  Mack    (1903;    C.   C.)    116   L.    T.   Jo. 

(Eng.)  179,  6  W.  C.  C.  113 — 121. 
v.  Ocean  Coal  Co.  [1907]  2  K.  B.  (Eng.) 

422,  76  L.  J.  K.  B.  N.  S.  1073,  97 

L.  T.  N.  S.  150,  23  Times  L.  R.  584 

— 122,  124. 
v.  Poulson     (1899)     16    Times    L.    R. 

(Eng.)  42,  63  J.  P.  757,  2  W.  C.  C. 

126 — 149,  156,  157,  373. 
v.  Ruabon  Coal  &  Coke  Co.  [1914]  W. 

C.  &  Ins.  Rep.  (Eng.)  32,  7  B.  W. 

C.  C.  202 — 145. 
v.  Smith  (1913)  108  L.  T.  N.  S.  (Eng.) 

200  [1913]  W.  C.  &  Ins.  Rep.  146, 

6  B.  W.  C.  C.  102 — 60,  332. 
v.  The  Duncan  [1914]  3  K.  B.  (Eng.) 

1039,  30  Times  L.  R.  651,  [1914] 

W.  N.  329,  83  L.  J.  K.  B.  N.  S. 

1683,  7  B.  W.  C.  C.  767 — 106. 
v.  The  Maritime  [1915]  2  K.  B.  (Eng.) 

137,  84  L.  J.  K.  B.  N.  S.  633,  [1915] 

W.  C.  &  Ins.  Rep.  97,  8  B.  W.  C.  C. 

267,  [1915]  W.  N.  71,  31  Times  L. 

R.  218 — 121. 


Williams  v.  Vauxhall  Colliery  Co.  [1907]  2 

K.  B.  (Eng.)  433,  76  L.  J.  K.  B.  N. 

S.    854,    97    L.    T.    N.    S.    559,    2£ 

Times  L.  R.  591 — 135. 
v.  Wigan  Coal  &  I.  Co.  (1909)  3  B.  W. 

C.  C.  (Eng.)  65 46. 

v.  Williams,  122  Wis.  27,  99  N.  W.  431 

369. 

v.  Wynnstay  Collieries  (1910)  3  B.  W. 

C.  C.  (Eng.)  473 — 149. 
Willmott  v.  Paton   [1902]    1  K.  B.    (Eng.) 

237,  71  L.  J.  K.  B.  N.  S.  1,  66  J.  P. 

197,  50  Week.  Rep.   148,  85  L.  T. 

N.   S.   569,   18   Times   L.   R.  48,   4 

W.  C.  C.  65 — 201,  206. 
Willoughby  v.  Great  Western  R.  Co.  (1904; 

C.  C.)   117  L.  T.  Jo.   (Eng.)   132,  6 

W.  C.  C.  28 35,  294. 

Wilmerson  v.  Lynn  &  H.  S.  S.  Co.  [1913J 

3  K.  B.  931;    (Eng.)  82  L.  J.  K.  B. 

N.  S.  1064,  109  L.  T.  N.  S.  53,  29 

Times  L.  R.  652,  57   Sol.  Jo.  700r 

[1913]  W.  C.  &  Ins.  Rep.  633,  6  B. 

W.  C.  C.  542 — 113. 

Wilmington  Transp.  Co.  v.  Railroad  Commis- 
sion, 236  U.  S.  151,  59  L.  ed.  508, 

P.U.R.1915A,  845,  35  Sup.  Ct.  Rep. 

276 449. 

Wilson  v.   Dorflinger    (1915)    --  App.  Div. 

— ,  155  N.  Y.  Supp.  857 — 218. 
v.  Jackson's  Stores   (1905)   7  W.  C.  C. 

(Eng.)   122— *170. 
v.  Kelly  (1909)   14  B.  C.  436 — 82. 
v.  Laing  [1909]  S.  C.  1230,  46  Scot.  L. 

R.  843 47. 

v.  Ocean  Coal  Co.   (1905)   21  Times  L. 

R.  (Eng.)  621,  aff'g  21  Times  L.  R. 

195 — 94. 
Winfield  v.  New  York  C.  &  H.  R.  R.  Co. 

(1915)  168  App.  Div.  351,  153  N. 

Y.  Supp.  499 — 215,  420,  452,  464. 
v.  New  York  C.  &  H.  R.  R.  Co.  (1915) 

216  N.  Y.  284,  110  N.  E.  614 — 215,. 

420,  452,  464. 
Winters  v.  Addie  &  Sons'  Collieries  [1911] 

S.  C.  1174,  48  Scot.  L.  R.  940 110. 

Wolsey  v.  Pethick  Bros.  (1908)  1  B.  W.  C. 

C.   (Eng.)   411 — 179. 
Wood  v.   Camden   Iron   Works    (1915)    221 

Fed.  1010 — 215,  245. 
v.  Davis   (1911)    5  B.  W.  C.  C.    (Eng.) 

113 — 68. 
v.  Walsh    [1899]    1  Q.  B.    (Eng.)    1009, 

80  L.  T.  N.  S.  345,  68  L.  J.  Q.  B. 

N.  S.  492,  63  J.  P.  212,  47  Week. 

Rep.  504,  15  Times  L.  R.  279 — 198,. 

199. 
Woodcock  v.  London  &  N.  W.  R.  Co.  [1913] 

3  K.  B.   (Eng.)   139,  82  L.  J.  K.  B. 

N.  S.  921,  109  L.  T.  N.  S.  253,  29 

Times  L.  R.  566  [1913]  W.  N.  179, 

[1913]   W.  C.   &  Ins.  Rep.  563,  6 

B.  W.  C.  C.  471 — 101,  361. 
v.  Walker  (1915)  —  App.  Div.  — ,  115- 

N.  Y.   Supp.  702 252. 

Wooder  v.  Lush  [1914]  7  B.  W.  C.  C.  (Eng.) 

673 — 81. 
Woodham  v.  Atlantic  Transport  Co.  [1899] 

1  Q.  B.    (Eng.)   15,  68  L.  J.  Q.  B. 

N.  S.  17,  79  L.  T.  N.  S.  395,  47 

Week.  Rep.  105,  15  Times  L.  R.  51,. 

1  W.  C.  C.  52 207. 


TABLE  OF  CASES  REPORTED  AND  CITED. 


537 


Woodhouse  v.  Midland  R.  Co.  [1914]  3  K. 

B.  (Eng.)  1034,  30  Times  L.  R.  653, 

83  L.  J.  K.  B.  X.  S.  1810,  7  B.  W. 

C.  C.  690 139. 

Woods  v.  Wilson  [1915]  W.  N.  (Eng.)  109, 

84  L.  J.  K.  B.  N.  S.  1067,  31  Times 
L.  R.  273,  59  Sol.  Jo.  348,  8  B.  W. 

C.  C.  288 — 35,  179,  294. 
v.  Wilson    [1913]    W.   C.    &   Ins.   Rep. 

(Eng.)   569,  29  Times  L.  R.  726,  6 

B.  W.  C.  C.  750 40,  134,  293. 

Workman  v.  New  York,  179  U.  S.  552,  45  L. 

ed.  314,  21  Sup.  Ct.  Rep.  212 448. 

Wray  v.  Taylor  Bros.  [1913]  W.  C.  &  Ins. 

Rep.    (Eng.)    446»  109  L.  T.  N.  S. 

120,  6  B.  W.  C.  C.  530,  4  N.  C.  C. 

A.  935 — 58. 

Wright  v.  Bagnall   [1900]    2  Q.  B.    (Eng.) 

240,  82  L.  T.  N;  S.  346,  69  L.  J. 

Q.  B.  N.  S.  551,  64  J.  P.  420,  48 

Week.   Rep.   533,   16   Times  L.   R. 

327 — 85,  92,  93. 
v.  Kerrigan  [1911]   2  I.  R.  301,  45  Ir.. 

Law    Times,    82,    4    B.    W.    C.    C. 

432 71,   301,   302. 

v.  Lindsay  (1911)  5  B.  W.  C.  C.  31,  49 

Scot.  L.  R.  210 102,  361. 

v.  Scott   [1912]   5  B.  W.  C.  C.    (Eng.) 

431 — 53. 
v.  Sneyd  Collieries  (1915)  84  L.  J.  K.  B. 

N.  S.  (Eng.)   1332 139,  180. 

Wrigley  v.  Bagley   [1901]   1  K.  B.    (Eng.) 

780,  70  L.  J.  K.  B.  N.  S.  538,  84 

L.  T.  N.  S.  415,  3  W.  C.  C.  61,  49 

Week.  Rep.  472,  65  J.  P.  372 — 95, 

98,  201,  208. 
v.  Bagley  [1902]  A.  C.  299,  71  L.  J.  K. 

B.  N.  S.  600,  66  J.  P.  420,  50  Week. 
Rep.   656,   86  L.   T.  N.  S.  775,  18 
Times    L.    R.    559 — 95,    98,    201, 
208. 

v.  Whittaker  [1902]  A.  C.  (Eng.)  299, 
71  L.  J.  K.  B.  N.  S.  600,  86  L.  T. 
N.  S.  775,  18  Times  L.  R.  559,  50 
Week.  Rep.  656,  66  J.  P.  420,  4 
W.  C.  C.  93 — 195,  200,  208,  211. 


Wrigley  v.  Wilson  [1913]  W.  C.  &  Ins.  Rep. 
(Eng.)   145,  6  B.  W.  C.  C.  90 47. 


Yates  v.  South  Kirkby,  F.  &  H.  Collieries 
[1910]  2  K.  B.  (Eng.)  538,  79  L.  J. 
K.  B.  N.  S.  1035,  103  L.  T.  N.  S. 
170,  26  Times  L.  R.  596,  3  B.  W. 
C.  C.  418,  3  N.  C.  C.  A.  225 31. 

Young  v.  Duncan  (1914)  218  Mass.  346,  106 
N.  E.  1 — 214,  215,  221,  268,  426, 
463. 

v.  Niddrie  &  B.  Coal  Co.  [1913]  A.  C. 
(Eng.)  531,  82  L.  J.  P.  C.  N.  S. 
147,  109  L.  T.  N.  S.  568,  29  Times 
L.  R.  626,  57  Sol.  Jo.  685,  [1913] 
W.  N.  206,  [1913]  W  C.  &  Ins. 
Rep.  547,  6  B.  W.  C.  C.  774,  [1913] 
S.  C.  66,  50  Scot.  L.  R.  744,  rev'g 
[1912]  S.  C.  644,  49  Scot.  L.  R. 
518,  5  B.  W.  C.  C.  552 123. 

Ystradowen  Colliery  Co.  v.  Griffiths  [1909] 
2  K.  B.  (Eng.)  533,  78  L.  J.  K.  B. 
N.  S.  1044,  100  L.  T.  N.  S.  869,  25 
Times  L.  R.  622,  2  B.  W.  C.  C. 
357 36,  137,  291,  336. 


Zabriskie  v.  Erie  R.  Co.  (1914)  86  N.  J.  L. 

266,  92  Atl.  385   (reported   in  full 

herein,  p.  315) — 236,  317,  [14]  478. 

v.  Erie  R.  Co.  85  N.  J.  L.  157,  88  Atl. 

824,  4  N.  C.  C.  A.  778 — 236,  317, 

[14]   478. 
Zappala  v.  Industrial  Insurance  Commission 

(1914)   82  Wash.  314,  144  Pac.  54 

(reported  in  full  herein,  p.  295) — 

216,  228,  270,  303. 
Zilch  v.  Bongardner  (1915)  —  Ohio  — ,  110 

N.  E.  459 — 224. 
Zillwood  v.  Winch  [1914]  W.  C.  &  Ins.  Rep. 

(Eng.)   87,  7  B.  W.  C.  C.  60 90. 

Zugg  v.  Cunningham   [1908]   S.  C.   (Scot.) 

827 — 96. 


INDEX 


ABSENCES  FROM  WORK. 

Consideration  to  be  given  to,  in  determining  average  weekly  earnings,  152. 

ACCIDENT. 

Definition  of,  generally,  30,  227. 

Scope  of  phrase  as  used  in  American  statutes,  227. 

Use  of  word,  "fortuitous"  in  denning  accident,  as  misleading,  30. 

Injury  by,  must  be  referable  to  definite  time,  place  and  circumstance,  30,  228. 

Hernia  or  rupture  as,  32,  228. 

Strain  resulting  from  overexertion  as,  32. 

Nervous  shock  as,  31. 

Disease  as,  36,  37. 

Occupational  disease  as,  35,  228. 

Infection  with  anthrax  as,  37. 

General  breakdown  due  to  overwork  as,  36. 

Incapacity  from  exposure  as,  36,  37. 

Sunstroke  or  heat  stroke  as,  38. 

Injury  from  assault  as  injury  by,  38,  231. 

Injury  by  violence  of  third  person  as,  31. 

Burden  of  proof  as  to,  39,  231. 

Proof  of,  by  circumstantial  evidence,  40,  231. 

ACTION  FOR  DAMAGES. 

Recovery  of  compensation  where  action  for  damages  has  failed,  81-83. 

ACTIVE  EMPLOYMENT. 

Recovery  of  compensation  for  injuries  received  while  not  actively  engaged  in  em- 
ployment, 57,  235. 

ACT  OF  1900. 

Text  of  English  act,  191. 

ACTUAL  DEPENDENTS. 

Who  are,  within  the  meaning  of  the  New  Jersey  statute,  250. 

ACTUAL  KNOWLEDGE. 

Of  employers  of  the  injury,  244. 

ADAMS  v.  ACME  WHITE  LEAD  &  COLOR  WORKS. 
Decision  in  full,  283. 

AGREEMENTS. 

Registration  of  memorandums  of,  184. 
Enforcement  of,  188. 
As  to  lump  sum,  189. 

AIRSHIP  OPERATOR. 

As  workman  under  the  English  act,  116. 

539 


540  INDEX. 

ALIEN  DEPENDENTS. 

Applicability  of  English  act  to,  125. 

As  within  the  protection  of  the  American  statutes,  251. 

ALLOWANCES. 

Consideration  of  allowances  received  by  workman  from  employer  during  period  of 
incapacity,  148. 

ALTERNATIVE  REMEDIES. 

Furnished  to  workmen  or  dependents  by  the  English  act,  72. 
Furnished  by  the  American  statutes,  223. 

AMOUNT  RECOVERABLE. 
By  dependent,  134,  253. 
By  workman  incapacitated  totally  or  partially,  136,  254. 

"ANCILLARY  OR  INCIDENTAL"  TO  THE  TRADE  OR  BUSINESS  OF  THE  PRIN- 
CIPAL. 

What  work  is,  97. 

ANTHRAX. 

Infection  by,  as  accident,  37. 

APOPLEXY. 

Death  from,  as  result  of  accident,  34. 

APPEALS. 

From  decision  of  arbitrator,  177. 

To  divisional  court,  when,  100,  112. 

Provisions  of  act  relative  to  appeals  in  Scotland,  127. 

Methods  of,  under  the  American  statutes,  266. 

APPOINTMENT. 

Of  arbitrators  and  medical  referees  under  the  English  act,  111. 

APPORTIONMENT. 

Of  compensation  recoverable  between  the  dependents  entitled  thereto,  162,  252. 

ARBITRATION. 

For  settlement  of  disputes  under  the  English  act,  79-81,  174. 

ARBITRATORS. 

Provisions  of  the  English  act  relative  to  appointment  and  remuneration  of,  111. 
Powers  and  functions  of,  177. 

ARISING  "OUT  OF  AND  IN  THE  COURSE  OF"  THE  EMPLOYMENT. 
Injuries  on  street  as,  41,  233. 

received  while  going  to  or  from  work  as,  60,  235. 

while  not  actively  engaged  in  duties,  58,  234. 

while  procuring  refreshments,  58,  237. 

received  while  seeking  toilet  facilities  as,  46,  236. 

while  workman  is  indulging  in  horse  play,  47,  240. 

while  doing  work  in  dangerous  or  negligent  way,  50,  238. 

while  unnecessarily  working  around  machinery,  as,  48,  55. 

while  mounting  or  dismounting  from  moving  cars,  as,  49. 

while  disobeying  rules  or  orders,  52,  238. 

while  obeying  direct  orders  of  superior,  62,  239. 


INDEX.  541 

ARISING  "OUT  OF  AND  IN  THE  COURSE  OF"  THE  EMPLOYMENT— continued. 

while  riding  bicycle,  48. 

while  acting  in  emergencies,  56. 

caused  by  weather  and  climatic  conditions;   lightning,  43,  241. 

received  by  sailor  while  on  shore,  65. 

from  assault  as,  64,  239. 

received  while  intoxicated  as,  62,  238. 
Loss  of  eye  through  infection,  as,  234. 
Self-inflicted  injuries  while  insane  as,  234. 

Burden  of  proof  as  to  injury  by  accident  arising  out  of  and  in  the  course  of  the  em- 
ployment, 67,  241. 
Circumstantial   evidence   to   prove   injury   by   accident   arising   out   of   and    in   the 

course  of  the  employment,  70,  241. 

ASSAULT. 

Injuries  from,  as  injuries  by  accident,  38,  231. 

Injuries  by,  as  arising  out  of  and  in  the  course  of  the  employment,  64,  239. 
Review  of  cases  on  recovery  of  compensation  where  workman  suffers  injury  from 
assault,  309. 

ASSUMPTION  OF  RISK. 

Abrogation  of  defense  of,  as  affecting  validity  of  statute,  413. 

As  affected  by  failure  of  employer  to  accept  the  provisions  of  the  optional  acts,  219. 

AT  OR  IMMEDIATELY  BEFORE. 

Meaning  of  phrase  as  used  in  section  8  of  the  English  act  with  reference  to  indus- 
trial diseases,  109. 

AUSTRALIA. 

Who  are  dependents  under  the  acts  of,  127. 

AVERAGE  WEEKLY  EARNINGS. 

Of  injured  employee,  how  computed  under  English  act. 

In  general,  149. 

Grades  of  employment,  150. 

Concurrent  employment,  152. 

Absences  from  work,  152. 

Period  of  time  forming  basis  for  computation,  155. 

Trade  or  calendar  week,  156. 

Continuity  of  employment,  157. 

Deductions,  158. 

Remuneration  other  than  regular  wages,  159. 
Computation  of,  under  the  American  statutes,  260. 
Review  of  cases  on  average  weekly  earnings  under  compensation  acts  of  workman 

employed  by  several  employers,  373. 
See  also  EABNINGS. 

AWARD. 

Varying  of  the  award  of  compensation,  163. 
Review  of,  163. 
Enforcement  of,  188. 
Deductions  from,  190. 

BANKRUPTCY. 

Text  of  English  act  relating  to  bankruptcy  of  employer,  98 
Securing  compensation  where  employer  is  bankrupt,  99. 


542  INDEX. 

BED. 

Injury  to  domestic  servant  while  lying  in,  as  arising  out  of  and  in  the  course  v 
the  employment,  58. 

BEING  CONSTRUCTED  OR  REPAIRED. 

Meaning  of  phrase  as  used  in  English  act  of  1897,  197. 

BENEFITS. 

Consideration   of   benefits   received   by   workman    from   employer    during   period      * 
incapacity,  148. 

BICYCLE. 

Injuries  received  while  riding,  as  arising  out  of  the  employment,  48. 

BLIND  ASYLUM. 
I 

Inmate  of,  as  workmen  under  the  English  act,  117. 

BLOOD  POISONING. 

As  an  accident,  36,  230. 

BOARD. 

Furnished  to  workman,  consideration  to  be  given  to,  in  fixing  average  weekly  earn- 
ings, 159. 

BOTTLE  WASHING  WORKS. 
As  a  factory,  202. 

BREAKDOWN. 

General  breakdown  due  to  overwork  as  accident,  36. 

BRIGHTMAN,  RE. 

Decision  in  full,  321. 

BRITISH  COLUMBIA. 

Who  are  dependents  under  the  British  Columbia  act,  126. 
Applicability  of  act  to  alien  dependents,  125. 

BUILDING. 

What  is,  within  meaning  of  English  act  of  1897,  196. 

Height  of,  how  measured  under  English  act  of  1897,  196. 

Machinery  temporarily  used  for  the  purpose  of  constructing,  as  a  factory,  208. 

BURDEN  OF  PROOF. 

That  injury  was  caused  by  accident,  39,  231. 

That  death  was  due  to  accident,  134. 

As  to  whether  accident  arose  out  of  and  in  the  course  of  the  employment,  67,  241. 

As  to  whether  employer  has  been  prejudiced  by  employee's  failure  to  give  notice 

of  injury,  88. 
As  to  change  in  workman's  condition  justifying  change  in  award,  171. 

BUSINESS. 

Consideration  of  profits  in,  in  determining  what  injured  employee  is  able  to  earn 

after  the  injury,  134. 

What  work  is  "ancillary  or  incidental"  to  the  trade  or  business  of  the  principal,  97. 
What  employment  is  "in  the  course  of  or  for  the  purposes  of"  the  principal's  trade 
or  business,  96. 


INDEX.  543 

CALENDAR  WEEKS. 

Use  of,  in  determining  average  weekly  earnings,  156. 

CARS. 

Injuries  received  while  getting  on  or  off  moving  cars,  as  arising  out  of  the  em- 
ployment, 49. 

CASUAL  EMPLOYEES. 

As  workmen  under  the  English  act,  120. 
As  within  the  provisions  of  the  American  statutes,  247. 

Review  of  cases  on  who  are  casual  employees  within  the  meaning  of  the  workmen's 
compensation  acts,  365. 

CERTIFYING  SURGEONS. 

Functions  of,  with  reference  to  industrial  diseases,  110. 

CHARWOMAN. 

As  workman  under  the  English  act,  120. 

CIRCUMSTANTIAL  EVIDENCE. 

As  proof  that  injury  was  caused  by  accident,  40,  231. 

As  basis  of  finding  that  accident  arose  out  of  and  in  the  course  of  the  employment, 

70,  231. 

That  death  was  due  to  accident,  134. 
See  also  EVIDENCE. 

CITING  CLAUSE. 

Of  English  act,  129. 

CLAIM  FOR  COMPENSATION. 

Text  of  the  English  act  requiring  claim  for  compensation  to  be  made,  83. 
Construction  of  provisions  relative  to,  85. 
Time  within  which  claim  must  be  made,  86. 

CLEM  v.  CHALMERS  MOTOR  CO. 
Decision  in  full,  352. 

CLIMATE. 

Injuries  caused  by  unusual  conditions  of,  as  arising  out  of  the  employment,  43. 

COMMITTEE. 

Representative  of  the  employer  and  his  workmen,  functions  of,  177. 

COMPENSATION  RECOVERABLE. 

Text  of  schedule  I.  of  the  English  act,  129. 

By  dependents,  134,  253. 

By  injured  employee,  generally,  141-149,  254. 

Recovery  of  compensation  where  action  for  damages  has  failed,  81-83. 

COMPULSORY  STATUTES. 
Constitutionality  of,  415. 

CONCURRENT  EMPLOYMENTS. 

Consideration  of  wages  from,  in  determining  average  weekly  earnings,  152. 

CONFINEMENT. 

In  prison,  as  terminating  right  to  compensation,  31,  137. 


544  INDEX. 

CONFLICT  OF  LAWS. 

With  reference   to  compensation   acts,   443. 

CONJECTURE. 

Finding  of  accident  not  to  be  based  on  mere,  40. 

Finding  that  accideat  arose  out  of  and  in  the  course  of  the  employment,  not  to-  be 
based  on,  68. 

CONSTITUTIONAL  LAW. 

Constitutionality  of  workmen's  compensation  and  industrial  insurance  statutes,  409. 

CONSTRUCTION. 

Strict  or  liberal  construction  of  American  statutes,  215. 

CONTINUITY  OF  EMPLOYMENT. 

As  affecting  average  weekly  earnings,  157. 

CONTRACT  OF  SERVICE. 

What  constitutes,  under  the  English  act,  114. 

CONTRACTORS. 

Provisions  of  English  act  with  reference  to  liability  to  servants  of,  95. 
Construction  of  provisions  of  English  act  relative  to  liability  to  servants  of  con- 
tractors, 95—97. 

CONTRACTS. 

Right  to  contract  out  of  statutes,  93,  227. 

Termination  of  contracts  relieving  employer  from  liability,  128. 

CONTRIBUTIONS. 

By  other  employers  in  cases  of  industrial  diseases,  109. 

CONTRIBUTORY  NEGLIGENCE. 

Abrogation  of  defense  of,  as  affecting  validity  of  statute,  413. 

Effect  on  defense  of,  of  employer's  failure  to  accept  the  provisions  of  the  optional 
acts,  219. 

CONVEYANCE. 

Injuries  received  while  riding  in  forbidden  conveyance,  as  arising  out  of  and  in 
the  course  of  the  employment,  55. 

COST  OF  MAINTENANCE. 

Of  minor  child,  as  affecting  amount  of  compensation  for  his  death,  136. 

COSTS. 

Allowance  of,  where  workman's  action  at  common  law  or  under  employer's  liability 
act  has  failed,  82. 

Allowance  of,  in  compensation  proceedings,  181. 

Included  in  indemnity  recoverable  by  employer  against  third  person  whose  negli- 
gence caused  the  injury,  103. 

COUNTY  COURT  JUDGE. 

As  arbitrator,  177. 

Appeal  from  decision  of,  178. 

COURSE  OF. 

See  ARISING  OUT  OF  AND  IN  THE  COTJBSE  OF  THE  EMPLOYMENT. 


INDEX.  545 

COURT  OF  APPEAL. 

When  appeals  lie  to,  100. 

Appeals  from  decision  of  county  court  judge  to,  178. 

Limitation  of  the  powers  of,  on  appeal,  178,  179. 

COURTS. 

In  which  proceedings  may  be  brought,  190. 

CROWN. 

Application  of  English  act  to  workman  under  the  Crown,  111. 

CUSTOM. 

Adoption  of  customary  way  of  operating  machine  as  serious  or  wilful  misconduct, 
244. 

DAM. 

As  included  in  the  word  "mill"  as  used  in  the  New  Hampshire  statute,  217. 

DAMAGES. 

Right  of  workman  under  English  act,  injured  by  negligence  of  the  employer,  to 

bring  action  for  damages,  72-75. 
Recovery  of  compensation  where  action  for,  has  failed,  81-83. 

DANGEROUS. 

Injuries  received  while  employee  is  taking  dangerous  method  of  performing  his  work, 
as  arising  out  of  the  employment,  50. 

DEATH. 

Serious  and  wilful  misconduct  not  bar  to  compensation  where  injury  results  in,  78. 
Of  sole  dependent  as  entitling  his  representative  to  claim  compensation,  135. 

DEATH  RESULTS  FROM  INJURIES. 
Meaning  of  phrase,  132. 

DECLARATION  OF  LIABILITY. 
When  may  be  made,  168-170. 

I)E  CONSTANTIN  v.  PUBLIC  SERVICE  COMMISSION. 
Decision  in  full,  329. 

DEDUCTIONS. 

To  be  made  in  estimating  average  weekly  earnings,  158. 
From  award,  190. 

DEFENSES. 

Abrogation  of  common-law  defenses  as  affecting  validity  of  statutes,  413. 
Common-law  defenses  of  employer  as  affected  by  his  failure  to  accept  the  provisions 
of  the  optional  acts,  219. 

DEPENDENTS. 

Who  are,  in  general,  under  the  English  act,  121-126. 
Who  are,  within  the  meaning  of  the  American  statutes,  248. 
Determination  of  question  who  are,  163. 
Amount  of  compensation  recoverable  by,  134-136,  253. 
Payment  of  compensation  to,  162. 

Election  by  workman  to  come  in  under  the  act  as  binding  upon  his  dependents  in 
case  of  his  death,  222. 


546  INDEX. 

DEPENDENTS— continued. 

As  "legal  representative"  under  the  New  York  act,  224. 
Death  of,  as  entitling  representative  to  compensation,  135. 

Review  of  cases  on  when  husband  and  wife  are  living  together  within  the  mean- 
ing of  the  compensation  act,  370. 

DISABLED  FROM  EARNING  FULL  WAGES. 
When  workman  is,  72. 

DISABLEMENT. 

See  SERIOUS  AND  PERMANENT  DISABLEMENT. 

DISEASE. 

As  an  accident  under  the  English  act,  33-37. 

As  an  accident  or  a  personal  injury  within  the  meaning  of  the  American  acts,  228. 

Intervention  of,  as  excuse  for  failure  to  give  notice  of  injury  in  time,  89,  92. 

Intervention  of,  as  affecting  incapacity,  137. 

Provisions  relative  to  awarding  compensation  for  industrial  diseases  in  the  English 

act,  106. 
Recovery  of  compensation  for  industrial  diseases  under  the  English  act. 

In  general,  108. 

Meaning  of  phrase  "at,  or  immediately  before,"  109. 

Presumption  as  to  cause  of  disease,  109. 

Contribution  by  other  employers,  109. 

Functions  of  certifying  surgeons  and  medical  referee,  110. 
Review  of  cases  passing  upon  the  question  of  recovery  of  compensation  for  incapacity 

resulting  from  disease,  289. 

DISFIGUREMENT. 

Recovery  of  compensation  because  of,  256. 

DISPUTES. 

Arbitration  for  settlement  of,  under  the  English  act,  79-81. 

DISTRESS  COMMITTEE. 

Temporary  employee  of,  as  workman  under  the  English  act,  117. 

DIVISIONAL  COURT. 

When  appeals  lie  to,  100,  112. 

DOCK. 

As  a  factory,  203. 

DOMESTIC  SERVANT. 

Injuries  received  by,  lying  in  bed,  as  arising  out  of  the  employment,  58. 

DRINK. 

Injuries  received  while  getting  a  drink  as  arising  out  of  and  in  the  course  of  the 
employment,  58. 

DROWNING. 

Unexplained  drowning  of  seaman  as  arising  out  of  and  in  the  course  of  his  employ- 
ment, 69. 
As  an  accident  within  the  meaning  of  the  American  statutes,  231. 

DRUGGIST. 

Wholesale  druggist  as  manufacturer   of   drugs   and  chemicals  within   meaning  of 
New  York  act,  218. 


INDEX.  547 


DUE  PROCESS  OF  LAW. 

See  CONSTITUTIONAL  LAW. 


EARNINGS. 

Review  of  cases  on  consideration  of  possible  earnings  of  injured  employee  in  other 

employment  in  fixing  compensation  under  compensation  act,  371. 
See  also  AVERAGE  WEEKLY  EARNINGS. 

ECZEMA. 

As  accident,  35,  228. 

ELECTION. 

Right  of,  to  workman  under  the  English  act  injured  by  negligence  of  the  employer, 

to  bring  proceedings  under  the  act  or  to  sue  for  damages,  72-74. 
To  come  in  under  the  optional  statutes,  219. 

ELECTRICAL  STATION. 
As  a  factory,  202. 

ELEVATOR. 

Injuries  received  while  riding  in,  contrary  to  orders,  as  arising  out  of  and  in  Ihe 
course  of  the  employment,  55. 

ELEVATOR  OPERATOR. 

Who  is,  within  the  meaning  of  the  New  York  act,  218. 
When  not  within  the  protection  of  the  Washington  act,  219. 
Recovery  of  compensation  for  injuries  while  employee  is  riding  in,  56. 

EMPLOYEES. 

Amount  of  compensation  recoverable  by  incapacitated  employee  under  the  American 

statutes,  254. 
Review  of  cases  on  who  are  casual  employees  within  the  meaning  of  the  workmen's 

compensation  acts,  265. 
See  also  WORKMEN. 

EMPLOYERS. 

Who  are,  under  the  English  act,  113. 

Who  are,  within  the  meaning  of  the  American  statutes,  245. 

Prejudiced  in  his  defense  by  failure  to  receive  notice,  86. 

Right  of  appeal  from  award  of  compensation  by  employer  insured  in  state  fund,  269. 

EMPLOYMENTS. 

To  which  the  English  acts  of  1897  are  applicable,  192. 
To  which  American  statutes  are  applicable,  216. 

ENGINEERING  WORK. 

What  constitutes,  within  meaning  of  English  act  of  1897,  208. 

Meaning  of  phrase  "on  or  in  or  about"  when  used  in  connection  with,  195. 

What  constitutes  "undertakers,"  in  case  of,  212. 

ENGLISH  WORKMEN'S  COMPENSATION  ACT. 
Text  of 

Section  1,  29. 
Section  2,  83. 
Section  3,  93. 
Section  4,  95. 
Section  5,  98. 


548  INDEX. 

ENGLISH  WORKMEN'S  COMPENSATION  ACT — continued. 
Text  of 

Section  6,  100. 

Section  7,  103. 

Section  8,  106. 

Section  9,  111. 

Section  10,  111. 

Section  11,  111. 

Section  12,  112. 

Section  13,  112. 

Section  14,  127. 

Section  15,  128. 

Section  16,  128. 

Section  17,  129. 

Schedule  I.  129. 

Schedule  II.  174. 

Schedule  III.  108. 

Act  of  1900,  191. 

Section  7  of  the  act  of  1897,  192 

ENTERITIS. 

As  accident,  35. 

EQUAL  PROTECTION  OF  THE  LAWS. 

Compensation  acts  as  violating  constitutional  provisions  guarantying,  414. 

EVIDENCE. 

Propriety  of  admission  of  hearsay  evidence  in  proceedings  before  the  Commission 

or  trial  court,  267. 
See  also  CIBCUMSTANTIAI,  EVIDENCE. 

EXAMINATION. 

Duty  of  injured  workman  to  submit  to  medical  examination,  160. 
Obstruction  of  examination  of  injured  workman,  what  constitutes,  161. 

GXCLUSIVENESS. 

Of  remedies  furnished  by  American  statutes,  223. 

EXCUSES 

For  not  giving  notice  of  injury  or  making  claim  for  compensation  in  time,  89. 

EXPOSURE. 

Incapacity  resulting  from,  as  injury  by  accident,  36,  37. 

CXTRAHAZARDOUS  EMPLOYMENTS.   . 

What  are,  within  the  meaning  of  the  New  York  statutes,  217. 
What  are,  under  the  Washington  act,  218. 

EXTRATERRITORIAL  EFFECT. 

Of  workmen's  compensation  acts,  443. 

EYE. 

Compensation  for  loss  of  eye  through  infection,  234. 

Review  of  cases  on  recovery  of  compensation  for  loss  of  eye  from  infection,  326. 

FACTORY. 

Meaning  of,  as  used  in  English  act  of  1897. 
In  general,  200. 


INDEX.  549 

FACTORY — continued. 

Premises  wherein  steam,  water  or  other  mechanical  power  is  used,  200. 

Iron  mills,  201. 

Premises  wherein  any  manual  labor  is  exercised  by  way  of  trade  or  for  pur- 
poses  of  gain,  201. 

Premises  in  which  manual  labor  is  exercised  in  adapting  an  article  for  sale,  202^ 

Ship  building  yards,  202. 

Bottle  washing  works,  202. 

Electrical  station  for  lighting  any  street,  public  place,  etc.,  202. 

Dock,  wharf,  quay,  203. 

Warehouse,  206. 

Machinery  used  in  the  process  of  loading  or  unloading  a  ship,  207. 

Machinery  temporarily  used  for  the  purpose  of  constructing  a  building,  208, 
What  constitutes  undertakers  in  case  of,  209. 
Meaning  of  phrase  "on,  in  or  about"  when  used  in  connection  with,  194. 

FALSE  REPRESENTATION. 

Making  of,  by  infant  in  order  to  secure  employment  as  serious  and  wilful  miscon- 
duct, 78. 

FELLOW  SERVANT. 

Liability  to  indemnity  where  negligence  of  fellow  workman  causes  injury,  102. 
Abrogation  of  defense  of  negligence  of,  as  affecting  validity  of  statute,  413. 
Effect  of  employer's  failure  to  accept  the  provisions  of  the  optional  acts  upon  his- 
right  to  rely  upon  the  defense  of  the  negligence  of,  219. 

FIRST  SCHEDULE. 

Of  English  act,  text  of,  129. 

FISHERMEN. 

When  not  within  the  provisions  of  the  English  act,  105. 

FLUME. 

As  included  in  the  word  "mill"  as  used  in  the  New  Hampshire  act,  217, 

FOOD. 

Injuries  received  while  procuring,  as  arising  out  of  the  employment,  58,  23T.    ..  * 
Review  of  cases  on  injuries  received  while  procuring  food  as  arising  out  of  and  in. 
the  course  of  the  employee's  employment,  320. 

/ 
FOOTBALL  PLAYERS. 

As  workmen  under  the  English  act,  116. 

FORTUITOUS. 

Use  of  word  in  defining  accident  as  misleading,  30. 

FRIENDLY  SOCIETY. 

Provisions  relative  to  substitution  of  scheme  approved  by,  for  provision  a  of  tne- 
act,  93,  94. 

FROSTBITE. 

Injuries  from,  as  arising  out  of  the  employment,  43. 

\ 
FULL  WAGES. 

When  workman  is  not  disabled  from,  72. 

•» 

GAIN. 

Premises  wherein  any  manual  labor  ia  exercised  for  purposes  of,  as  factory,  fcOl. 


550  INDEX. 

GAME  KEEPER. 

As  within  the  protection  of  the  act  of  1900,  191. 

GAYNOR  v.  STANDARD  ACCIDENT  INSURANCE  CO. 
Decision  in  full,  363. 

GILLEN  v.  OCEAN  ACCIDENT  &  GUARANTEE  CORP. 
Decision  in  full,  371. 

GLASS. 

What  workman  are  engaged  within  the  manufacture  of,  within  the  meaning  of  the 
New  York  act,  218. 

GOING  TO  AND  FROM  WORK. 

Injuries  received  while  employee  is,  as  arising  out  of  the  employment,  60,  235. 
Review  of  cases  on  recovery  of  compensation  for  injuries  received  while  going  to 
and  from  work,  331. 

GRADES  OF  EMPLOYMENT. 

What  constitutes,  under  English  act,  150-152. 

GRADUATE  IN  SCIENCE. 

As  workman,  under  the  English  act,  115. 

GREAT  WESTERN  POWER  CO  v.  PILLSBURY. 
Decision  in  full,  281.  ' 

-GUESS. 

Finding  of  accident  not  to  be  based  on  mere,  40. 

Finding  that  accident  arose  out  of  and  in  the  course  of  the  employment  not  to  be 
based  on,  68. 

HEARSAY  EVIDENCE. 

Propriety  of  admission  of,  on  hearing  before  Commission  or  trial  court,  267. 

HEART  DISEASE. 

i?^ath  or  incapacity  from,  as  injury  by  accident,  33,  34. 

HEAT  ST  ROKE. 
As  accident,  38. 

Death  from,  as  result  of  accident,  34. 
Injury  from,  as  arising  out  of  and  in  the  course  of  the  employment,  43. 

HERNIA. 

As  an  accident,  32,  228. 

Review  of  cases  on  hernia  as  an  accident  or  personal  injury  within  the  meaning 
of  toe  compensation  acts,  303. 

HOENIG  v.  INDUSTRIAL  COMMISSION. 
Decision  in  full,  339. 

HOME. 

Injuries  received  by  employee  while  going  to  or  from,  as  arising  out  of  the  employ- 
ment, 60,  235. 

Re  lew  of  cases  on  recovery  of  compensation  for  injuries  received  while  going  to 
and  from  work,  331. 


INDEX.  551 

HOPKINS  v.  MICHIGAN  SUGAR  CO. 
Decision  in  full,  310. 

HORSE  PLAY. 

Injuries  received  while  indulging  in,  as  arising  out  of  the  employment,  47,  240. 

HORSE  POWER. 

As  mechanical  power  within  the  meaning  of  the  English  act  of  1897,  201. 

HOSPITAL. 

Nurse  or  attendant  in,  contracting  disease  as  suffering  injury  by  accident,  36. 

HOTEL. 

Employee  in  kitchen  of,  as  within  protection  of  New  York  act,  218. 

HURLE,  RE. 

Decision  in  full,  279. 

HUSBAND  AND  WIFE. 

Review  of  cases  on  when  husband  and  wife  are  living  together  within  the  meaning  of 
the  compensation  acts,  370. 

ICE. 

Work  of  harvesting  ice  not  embraced  within  New  York  act,  217. 

ILLEGITIMATE  CHILDREN. 

As  dependents  under  the  English  act,  124. 

IMPLIED  AGREEMENT. 

Registration  of  memorandum  of,  184. 

IMPRISONMENT. 

As  terminating  right  to  compensation,  31. 
As  affecting  incapacity  for  work,  137. 

INABILITY  TO  GET  WORK. 

As  embraced  in  expression  "incapacity  for  work,"  136,  255. 

Review  of  cases  on  inability  to  get  work  because  of  injury  as  "incapacity  for  work," 
380. 

INCAPACITY. 

Caused  by  accident,  see  ACCIDENT. 

What  constitutes  generally,  136-141. 
As  affected  by  nervous  and  mental  condition,  137. 
As  affected  by  intervention  of  disease,  137. 
As  affected  by  conviction  of  crime  and  imprisonment,  137. 
Recovery  of  compensation  because  of,  under  the  American  statutes,  254. 
Incapacity  for  work,  as  including  inability  to  procure  work,  255. 
Review  of  cases  on   inability   to  get  work  because  of   injury   as   "incapacity   for 
work,"  380. 

INCAPACITY  OF  USE. 

Meaning  of  phrase  as  used  in  the  Massachusetts  act,  258. 

INCIDENTAL. 

What  work  is  "ancillary  or  incidental"  to  the  trade  or  business  of  the  principal, 
97. 


552  INDEX. 

INDEMNITY. 

Employer's  right  to  indemnity  from  third  person  whose  negligence  caused  the  in- 
jury, 102. 

INDEPENDENT  CONTKACTORS. 

As  workmen  under  the  English  act,  118. 

As  employees  under  the  American  statutes,  247. 

INDUSTRIAL  DISEASE. 
See  DISEASE. 

INFANTS. 

See  MINORS. 

INFECTION. 

With  anthrax  as  accident,  37. 

With  poison  ivy,  as  an  accident  within  the  meaning  of  the  New  York  act,  230. 

Compensation  for  loss  of  eye  through  infection,  234. 

Review  of  cases  on  recovery  of  compensation  for  loss  of  eye  through  infection,  326. 

INJURIES. 

Provisions  of  English  act  relative  to  report  of,  112. 

INJURY  BY  ACCIDENT. 
See  ACCIDENT. 

INSANITY. 

As  affecting  right  of  compensation,  234. 

Death  by  suicide  of  insane  workman  as  affecting  right  of  dependent  to  compen- 
sation, 133. 

Review  of  cases  on  applicability  of  compensation  acts  where  insane  workman 
commits  suicide  or  suffers  personal  injuries,  339. 

INSURANCE  COMPANY. 

Provisions  for  securing  compensation  where  employer  has  become  bankrupt  or  is 
being  wound  up,  99. 

INSURANCE  FUNDS. 

Collection  and  maintenance  of,  265. 

INTENTIONAL. 

Preservation  of  common-law  remedy  where  injury  is  caused  by  intentional  act  of 
employer,  224. 

"IN  THE  COURSE  OF  OR  FOR  THE  PURPOSES  OF  THE  PRINCIPAL'S  TRADE  OR 

BUSINESS." 
When  employment  is,  96. 

INTOXICATION. 

Effect  of,  on  recovery  of  compensation,  62,  238. 
As  serious  and  wilful  misconduct  under  the  English  act,  78. 

Review  of  cases  on  recovery  of  compensation  where  injured  workman  was  intoxi- 
cated at  the  time  of  the  injury,  351. 

IRON  MILLS. 

As  a  factory  within  the  meaning  of  the  English  act  of  1897,  201. 


INDEX.  553 

JENDRUS  v.  DETROIT  STEEL  PRODUCTS  CO. 
Decision  in  full,  381. 

JENSEN  v.  SOUTHERN  PACIFIC  CO. 
Decision  in  full,  403. 

JOINT  LIABILITY. 

Of  employer  and  third  person  whose  negligence  caused  the  injury,  101. 

JURISDICTION. 

Question  as  to  jurisdiction  of  Commission  or  trial  court,  as  question  of  law,  269. 

KENNERSON  v.  THAMES  TOWBOAT  CO. 
Decision  in  full,  436. 

KENTUCKY  STATE  JOURNAL  CO.  v.  WORKMEN'S  COMPENSATION  BOARD. 
Decision  in  full,  389. 

KLAWINSKI  v.  LAKE  SHORE  &  MICHIGAN  SOUTHERN  R.  CO. 
Decision  in  full,  342. 

LADDERS. 

As  scaffolding  within  the  meaning  of  the  English  act  of  1897,  199. 

LAND. 

Injury  to  sailor  while  on,  as  arising  out  of  the  employment,  65. 

LAW  WRITERS. 

As  workmen  under  the  English  act,  116. 

LEAD  POISONING. 

As  an  accident  under  the  English  act,  35. 

As  an  accident  within  the  meaning  of  the  Michigan  and  Massachusetts  acts,  228. 

LEGAL  REPRESENTATIVES. 

Meaning  of  the  phrase  as  used  in  section  10  of  the  New  York  act,  224. 

LETTERS  OF  ADMINISTRATION. 

Need  not  be  taken  out  as  condition  precedent  to  receiving  compensation,  163. 

LIBERAL  CONSTRUCTION. 
Of  American  statutes,  215. 

LIGHTNING. 

Death  or  injury  by,  as  arising  out  of  the  employment,  43,  241. 
Review  of  cases  on  compensation  for  injuries  by,  347. 

LIGHT  WORK. 

Duty  of  employee  to  use  efforts  to  procure  light  work  to  do,  145. 
Duty  of  employer  to  furnish  light  work  to  injured  employee,  145-147. 
As  grade  of  employment,  151. 

LIQUIDATION. 

Provisions    for    securing    compensation    where    corporate    employer    has   gone    into 
liquidation,  99. 


554  INDEX. 

LOADING. 

Machinery  used  in  the  process  of  loading  a  ship  as  a  factory,  207. 

LOBAR  PNEUMONIA. 

As  an  accident  within  the  meaning  of  the  Massachusetts  act,  229. 

LODGING. 

Furnished  to  workman,  consideration  to  be  given  to,  in  fixing  average  weekly  earn- 
ings, 159. 

LONG  SHORE  WORK. 

Application  of  New  York  act  to,  217. 

LORD  CAMPBELL'S  ACT. 

Action  under,  as  action  within  meaning  of  section  1,  subsection  4,  of  the  English 
act,  82. 

LOSS. 

Of  a  member,  what  constitutes  within  the  meaning  of  the  Wisconsin  act,  258. 

LUMBERMAN. 

Not  within  provisions  of  Quebec  act,  117. 

LUMP  SUM. 

Redemption  of  weekly  payments  by,  172,  173. 

Agreements  as  to,  189. 

Commutation  of  weekly  payments  by  payment  of,  262. 

McCOY  v.  MICHIGAN  SCREW  CO. 
Decision  in  full,  323. 

McNICOL,  RE. 

Decision  in  full,  306. 

MACHINERY. 

Injuries  from,  to  employees  not  engaged  to  work  around,  as  arising  out  of  the  em- 
ployment, 48,  55. 

Temporarily  used- for  the  purpose  of  constructing  a  building  as  a  factory,  208. 
Used  in  the  loading  or  unloading  of  a  ship  as  a  factory,  207. 

MANUAL  LABOR. 

Workman  need  not  necessarily  be  engaged  in,  115. 

Premises  in  which  manual  labor  is  exercised  in  adopting  articles  for  sale,  as  a  fac- 
tory, 202. 

Premises  wherein  manual  labor  is  exercised  by  way  of  trade  or  for  purposes  of  gain, 
as  a  factory,  201. 

MASSAGE. 

Duty  of  injured  workman  to  undergo,  139. 

MEAT  MARKET. 

Employees  in,  as  within  the  protection  of  New  York  act,  218. 

MECHANICAL  POWER. 

Premises  wherein  steam,  water  or  other  mechanical  power  is  used  as  a  factory,  200. 


INDEX.  555 

MEDICAL  EXAMINATION. 

Duty  of  injured  workman  to  submit  to,  160. 

MEDICAL  REFEREE. 
Reference  to,  190. 

Functions  of,  with  reference  to  industrial  diseases,  110. 
Provisions  of  the  English  act  relative  to  the  appointment  and  remuneration  of,  111. 

MEDICAL  SERVICE. 

Allowance  for,  under  American  statutes,  261. 

MELLEN  LUMBER  CO.  v.  INDUSTRIAL  COMMISSION. 
Decision  in  full,  374. 

MEMBER. 

Loss  of,  what  constitutes,  258. 

MEMORANDUMS  OF  AGREEMENT. 
Registration  of,  184. 

MILL. 

Scope  of  trade  as  used  in  the  New  Hampshire  act,  217- 

MILLIKEN  v.  TRAVELERS  INSURANCE  CO. 
Decision  in  full,  337. 

MILWAUKEE  v.  ALTHOFF. 
Decision  in  full,  327. 

MINE. 

Injuries  received  while  riding  in  a  tub  in  a  mine,  contrary  to  orders,  as  arising 

out  of  and  in  the  course  of  the  employment,  55. 
What  constitutes  within  meaning  of  English  act  of  1897,  209. 
Meaning  of  phrase  "in  or  on  or  about"  used  in  connection  with,  195. 

MINE  MANAGER. 

As  workman  under  the  English  act,  115. 

MINORS. 

False  representation  as  to  age  by,  in  order  to  secure  employment,  as  serious  and 

wilful  misconduct,  78. 
As  employers  under  the  English  act,  113. 
As  dependents,  122. 

Parent  as  dependent  upon  the  support  of  minor  child,  251. 
Computation  of  average  weekly  earnings  of,  149. 
Right  of  parent  where  minor  employee  is  injured,  224. 

MISCONDUCT. 

See  SERIOUS  AND  WILFUL  MISCONDUCT. 

MUNICIPALITIES. 

As  employers  under  the  Illinois  act,  245. 

MUSIC  TEACHER. 

As  workman  under  the  English  act,  116. 


556  INDEX. 

NEGLIGENCE. 

Injuries  received  while  employee  is  acting  negligently  as  arising  out  of  the  em- 
ployment, 50,  238. 

Effect  of  negligence  on  part  of  master  or  employer  to  give  employee  right  of  action 
for  damages  under  the  English  act,  72-75. 

Preservation  in  American  acts  of  common-law  right  of  action  where  injury  is  caused 
by  wilful  or  intentional  act  of  employer,  224. 

Recovery  of  compensation  where  an  injury  was  caused  by  the  negligence  of  a  third 
person,  100. 

Rights  and  remedies  under  American  statutes  where  negligence  of  third  person  causes 
the  injury,  225. 

Review  of  cases  on  rights  and  remedies  under  compensation  acts  where  injuries  were 
caused  by  negligence  of  third  person,  360. 

NEKOOSA-EDWARDS  PAPER  CO.  v.  INDUSTRIAL  COMMISSION. 
Decision  in  full,  348. 

NERVOUS  CONDITION. 

As  affecting  incapacity  for  work,  137. 

NERVOUS  SHOCK. 
As  accident,  31. 

NONRESIDENT  ALIEN  DEPENDENTS. 

As  within  the  protection  of  the  compensation  statutes,  126,  251. 

NORTHWESTERN  IRON  CO.  v.  INDUSTRIAL  COMMISSION. 
Decision  in  full,  366. 

NOTICE. 

Text  of  English  act  requiring  notice  of  the  accident  to  be  given,  83. 

General  provisions  relative  to  the  giving  of  notice  of  the  accident,  83. 

Form  and  contents  of,  84. 

To  whom  notice  may  be  given,  85. 

Excuses  for  not  giving  notice  or  making  claim  for  compensation  in  time,  89. 

Requirements  as  to  giving  notice  under  American  statutes,  247. 

NURSE. 

Contracting  disease  in  hospital,  as  suffering  injury  by  accident,  36. 
Allowance  for  expenses  for  services  of,  under  American  statutes,  262. 

OCCUPATIONAL  DISEASE. 
See  DISEASE. 

OCCUPATIONS. 

To  which  the  English  act  of  1897  was  applicable,  192. 
To  which  American  acts  are  applicable,  216. 

ON  OR  IN  OR  ABOUT. 
Meaning  of  the  phrase. 
In  general,  193. 

When  used  in  connection  with  a  railroad,  193. 
with  a  factory,  194. 
with  a  mine,  195. 
with  engineering  work,  195. 

with  the  premises  on  which  the  principal  has  undertaken  to  execute  the 
work,  196. 


INDEX.  657 

OPERATION. 

Duty  of  injured  workman  to  undergo,  139,  259. 

Review  of  cases  on  refusal  of  injured  workman  to  have  operation  performed  as  bar 
to  compensation,  387. 

OPTIC  NEURITIS. 

As  a  personal  injury  within  the  meaning  of  the  Massachusetts  act,  229. 

OPTIONAL  STATUTES. 

Election  to  come  in  under,  219. 

ORDERS. 

Injuries  received  while  acting  contrary  to,  as  arising  out  of  the  employment,  52. 
Violation  of,  as  serious  and  wilful  misconduct  under  the  English  act,  76. 
Injuries  received  while  obeying  express  orders  of  superior  as  arising  out  of  and  in 
the  course  of  the  employment,  62,  239. 

OUT  OF. 

See  ARISING  "OUT  OF  AND  IN  THE  COURSE  OF"  THE  EMPLOYMENT. 

OVEREXERTION.     . 

Sprain  from,  as  accident,  32. 

OVERWORK. 

General  breakdown  from,  as  accident,  36. 

PARENT. 

Right  of,  under  compensation  act,  where  minor  employee  is  injured,  224. 

•     As  dependent  of  earnings  of  minor  child,  251. 

• 

PARTIES  INTERESTED. 

Who  are,  within  the  meaning  of  schedule  II.,  paragraph  9,  187. 

PARTNERSHIP. 

Member  of,  not  employee  of  partnership,  117. 

PAYMENTS. 

Of  compensation  as  waiver  of  right  of  employer  to  insist  on  the  giving  of  notice 

of  injury,  92. 
Consideration  of  payments  received  by  workman  from  employer  during  period  of 

incapacity,  148. 
Review  of,  163. 

PEET  v.  MILLS. 

Decision  in  full,  358. 

PENDAR  v.  H.  &  B.  AMERICAN  MACHINE  CO. 
Decision  in  full,  428. 

PENNY  A  WEEK. 
Award  of,  168. 

PERIOD  OF  EMPLOYMENT. 

Forming  basis  for  computation  for  average  weekly  earnings,  155. 

PERMANENT  DISABLEMENT. 

See  SERIOUS  AND  PERMANENT  DISABLEMENT. 


558  INDEX. 

PERSONAL  BELONGINGS. 

Recovery  of  compensation  for  injuries  received  while  trying  to  save  personal  belong- 
ings, 237,  322. 

PERSONAL  INJURY. 

Scope  of  phrase  as  used  in  American  statutes,  227. 

PERSONAL  INJURY  BY  ACCIDENT. 
See  ACCIDENT. 

PERSONAL  REPRESENTATIVE. 

Death  of  dependent  as  entitling  personal  representative  to  compensation,  135. 
Election  of  workman  to  come  in  under  the  act,  as  binding  upon  his  personal  repre- 
sentatives in  case  of  his  death,  222. 
Option  of  employee  to  accept  or  reject  Arizona  act  not  open  to,  223. 

POCCARDI  v.  PUBLIC  SERVICE  COMMISSION. 
Decision  in  full,  299. 

POISON  IVY. 

Infection  from,  as  an  accident  within  the  meaning  of  the  New  York  act,  230. 

POLICEMAN. 

As  workman  under  the  English  act,  117. 

POSTHUMOUS  CHILD. 

As  dependent  under  the  English  act,  124. 

PRACTICE. 

Under  the  American  statutes,  in  general,  271. 

PREJUDICE. 

Employer  prejudiced  in  his  defense  by   failure  of  employee   to  give  notice  of  the 
injury,  86. 

PREMISES    ON    WHICH    THE    PRINCIPAL    HAS    UNDERTAKEN    TO    EXECUTE 

WORK. 
What  are,  97. 

PRESUMPTION. 

As  the  cause  of  industrial  disease,  109. 

As  to  the  dependency  of  the  members  of  the  workman's  family,  122. 

As  to  the  dependency  of  near  relatives,  250. 

PRINCIPAL. 

See  CONTRACTOR. 

PRISON. 

Confinement  in,  as  terminating  right  to  compensation,  31. 

Confinement  in,  as  affecting  incapacity,  137. 

Inmates  of,  as  dependents  under  the  English  act,  125. 

PROCEDURE. 

In  action  by  employer  against  third  person  whose  negligence  caused  the  injury,  10$. 
Under  the  American  statutes,  in  general,  271. 


INDEX.  559 

PROFITS. 

Sharing  in,  as  affecting  status  of  workman  generally,  117. 

Sharing  in,  as  barring  member  of  crew  of  fishing  vessel  from  compensation,  105. 

Consideration  of  profits  in  business  undertaken  by  injured  workman  in  estimating 

what  he  is  able  to  earn  after  the  injury,  144. 

Made  by  workman,  consideration  to  be  given  to,  in  fixing  average  weekly  earnings, 
160. 

PROOF. 

See  BUBDEN  OF  PROOF. 

PTOMAINE  POISONING. 
As  accident,  35. 

PUBLIC  BODIES. 

As  employers  under  the  English  act,  113. 

QUAY. 

As  a  factory,  203. 

QUEBEC. 

Who  are  dependents  under  the  act  of,  127. 

QUESTIONS  OF  FACT. 

Jurisdiction  of  court  of  appeal  over,  179. 

RAILROAD. 

Meaning  of  phrase  "on,  in  or  about"  used  in  connection  with,  193. 

Meaning  of,  as  used  in  English  act  of  1897,  200. 

When  employees  of,  are  under  protection  of  New  York  act,  217. 

RECEIVERS. 

As  employers  under  the  American  statutes,  245. 

RECERTIFICATION  OF  SCHEME. 

Provisions  of  English  act  relative  to,  128. 

RECTIFICATION. 
Of  register,  188. 

REDEMPTION. 

Of  weekly  payments  by  payment  of  lump  sum,  172,  173. 

REFERENCE. 

To  medical  referee,  190. 

REFRESHMENTS. 

Review  of  cases  on  injuries  received  while  procuring  refreshments,   as  arising  out 
of  and  in  the  course  of  the  employee's  employment,  320. 

REGISTER. 

Rectification  of,  188. 

REGISTRATION. 

Of  memorandums  of  agreement,  184. 


560  INDEX. 

REITHAL,  RE. 

Decision  in  full,  304. 

REMEDIES. 

Alternative  remedies  furnished  to  workmen  or  dependents  under  the  English  act, 

72. 

Under  the  American  statutes,  223. 
Exclusiveness  of  remedy  furnished  by  American  statutes,  223. 

REMUNERATION. 

Of  arbitrators  and  referees  under  the  English  act,  111. 

REPEALING  CLAUSE. 
.       Of  English  act,  128. 

REPORT. 

Provisions  of  English  act  relative  to  report  of  injuries,  112. 

REPRESENTATIVE. 

See  PERSONAL  REPRESENTATIVE. 

REQUIREMENTS  OF  NATURE. 

Injuries  received  while  going  to  satisfy,  as  arising  out  of  the  employment,  46. 

RESCUE. 

Injuries  received  while  attempting  to  rescue  fellow  workman  as  arising  out  of  the 
employment,  238. 

RETROACTIVE  EFFECT. 

Of  American  statutes,  216. 

REVIEW. 

Of  weekly  payments  under  the  English  act,  163. 

Of  decisions  of  the  Commission  or  trial  court  under  American  statutes,  266. 

REYNOLDS  v.  DAY. 
Decision  in  full,  432. 

RULES. 

Injuries  received  while  acting  contrary  to,  as  arising  out  of  the  employment,  52. 
Violation  of,  as  serious  and  wilful  misconduct  under  the  English  act,  76. 

RUPTURE. 

As  an  accident,  32,  228. 

SAILORS. 

Injuries  to,  while  on  shore,  as  arising  out  of  and  in  the  course  of  the  employment,  66. 

SALESMAN. 

As  workman  under  the  Manitoba  statute,  116. 

SCAFFOLDING. 

Meaning  of  phrase  as  used  in  English  act  of  1897,  198. 

SCHEDULE. 

Text  of  first  schedule  of  English  act,  129. 
Text  of  second  schedule  of  English  act,  174. 
Text  of  third  schedule  of  English  act,  108. 


INDEX.  561 

SCHEME. 

Substitution  of  scheme  approved  by  friendly  society  for  provisions  of  the  act,  93,  94. 
Recertification  of,  entered  into  under  act  of  1897,  128. 

SCOPE  OF  EMPLOYMENT. 

See  ABISING  OUT  OF  AND  IN  THE  COUBSE  OF  THE  EMPLOYMENT. 

SCOTLAND. 

Who  are  dependents  in,  125. 

Provisions  of  English  act  relative  to  Scotland  only,  191. 

SEAMAN. 

Unexplained  drowning  of,  as  death  from  accident,  as  arising  out  of  and  in  the  course 

of  the  employment,  69. 
As  not  within  the  protection  of  the  English  act  of  1907,  120. 

SEA  SERVICE. 

Provisions  of  English  act  relative  to  application  of  act  to  workmen  in  the  sea 

service,  103. 
Recovery  of  compensation  by  workmen  in  sea  service,  104,  105. 

SECOND  SCHEDULE. 

Of  English  act,  text  of,  174. 

SECURITY  FOR  COSTS. 
Practice  relative  to,  183. 

SERIOUS  AND  PERMANENT  DISABLEMENT. 

Serious  and  wilful  misconduct  not  bar  to  compensation  where  injury  results  in,  78. 

SERIOUS  AND  WILFUL  MISCONDUCT. 

What  constitutes  under  the  English  act,  75-79. 
What  constitues  under  the  American  acts,  243. 

Review  of  cases  on  what  constitutes  serious  and  wilful  misconduct  within  the  mean- 
ing of  the  compensation  acts,  355. 

SERVICE. 

What  constitutes  contract  of,  114. 

SET-OFF. 

Against  weekly  payments,  174. 

SHARING  PROFITS. 

As  barring  a  member  of  the  crew  of  the  fishing  vessel  from  right  to  compensa- 
tion,  105. 

SHIPBUILDING  YARD. 
As  a  factory,  202. 
When  workmen  employed  in,  are  not  excluded  from  provisions  of  English  act,  213. 

SHIPS. 

Detention  of  ships  whose  owners  are  liable  for  compensation,  provisions  of  the  Eng- 
lish act  relative  to,  111. 
In  a  dock  as  a  factory,  203. 
Machinery  used  in  the  process  of  loading  or  unloading,  as  a  factory,  207. 

SHOCK. 

Nervous  shock  as  accident,  31.       fit 


562  INDEX. 

SHORE. 

Injuries  to  sailor  while  on,  as  arising  out  of  the  employment,  65. 

SICKNESS. 

Absences  from  work  because  of,  as  affecting  average  weekly  earnings,  152-155. 

SPONATSKI,  RE. 

Decision  in  full,  333. 

SPORT. 

Injuries  received  while  acting  in,  as  arising  out  of  and  in  the  course  of  the  employ- 
ment, 47,  240. 
Incapacity  resulting  from  sportive  acts,  as  an  accident,  231. 

STATE  EX  REL.  JARVIS  v,  DAGGETT. 
Decision  in  full,  446. 

STATE  EX  REL.  PEOPLE'S  COAL  &  ICE  CO.  v.  DISTRICT  COURT. 
Decision  in  full,  344. 

STATUTES. 

Constitutionality  of  workmen's  compensation  and  industrial  insurance  statutes,  409. 
See  also  ENGLISH  WORKMEN'S  COMPENSATION  ACT. 

STEAM. 

Premises  wherein  steam,  water  or  other  mechanical  power  is  used  as  a  factory,  200. 

STOCKER. 

Receiving  share  of,  as  barring  member  of  crew  of  fishing  vessel  from  compensa- 
tion, 105. 

STORMS. 

Injuries  received  while  seeking  shelter  from,  as  arising  out  of  and  in  the  course  of 
the  employment,  236. 

STRAIN. 

Resulting  from  overexertion  as  accident,  32. 

STREET. 

Injuries  upon,  as  arising  out  of  the  employment,  41,  233. 

Review  of  cases  on  recovery  of  compensation  for  injury  to  employee  received  while 
on  the  street,  314. 

STRICT  CONSTRUCTION. 

Of  American  statutes,  215. 

STRIKE  BREAKERS. 

As  forming  a  grade  of  employment,  151. 

SUBCONTRACTORS. 

Liability  of,  to  indemnify  principal  contractors  who  have  been  obliged  to  pay  com- 
pensation for  injuries  to  subcontractor's  employees,  96. 

SUICIDE. 

By  insane  workman  as  affecting  right  of  dependents  to  compensation,  133,  234. 
As  wilful  misconduct,  244. 

Review  of  cases  on  applicability  of  compensation  acts  where  insane  workman  com- 
mits suicide  or  suffers  personal  injury,  339. 


INDEX.  563 

SULLIVAN,  RE. 

Decision  in  full,  378. 

SUNDINE,  RE. 

Decision  in  full,  318. 

SUNSTROKE. 

As  accident,  38. 

Injuries  from,  as  arising  out  of  the  employment,  43. 

SUPERIOR. 

Injuries  received  while  obeying  orders  of,  as  arising  out  of  and  in  the  course  of 
the  employment,  62. 

SURGEONS. 

See  CERTIFYING  SUBGEON. 

SURMISE. 

Finding  of  accident  not  to  be  based  on  mere,  40. 

Finding  that  accident  arose  out  of  and  in  the  course  of  the  employment  not  to  be 
based  on,  68. 

SUSPENSORY  AWARD. 
When  may  be  made,  168. 

SYDNEY  HARBOR  TRUST  COMMISSIONERS. 
As  employers,  113. 

TAXICAB  DRIVER. 

As  bailee  and  not  workman,  117. 

TERMINATION  OF  PAYMENTS. 

When  payments  may  be  terminated,  166. 

TEXT. 

Of  English  workmen's  compensation  act,  see  ENGIJSH  WOBKMEN'S  COMPENSATION 
ACT. 

THIRD  PERSON. 

Provisions  of  English  act  where  negligence  of  third  person  causes  the  injury,  100. 

Recovery  of  compensation  where  injury  is  caused  by  negligence  of,  101,  223. 

Employer's  right  to  indemnity  from  third  person  whose  negligence  caused  the  in- 
jury, 102. 

Review  of  cases  on  rights  and  remedies  under  compensation  act  where  injuries  were 
caused  by  negligence  of,  360. 

THIRD  SCHEDULE. 

Of  English  act,  text  of,  108. 

THRESHING. 

As  agricultural  work  within  the  meaning  of  the  English  act  of  1900,  191. 

TIME. 

For  appeal  from  award  of  the  arbitrator,  178. 

TIPS. 

Consideration  to  be  given  to,  in  estimating  average  weekly  earnings,  159. 


564  INDEX. 

TITLE. 

Validity  of  statute  as  affected  by  title,  411.. 

TOILET  FACILITIES. 

Injuries  received  while  seeking,  as  arising  out  of  and  in  the  course  of  the  employ- 
ment, 46,  236. 

Review  of  cases  on  injuries  received  while  seeking  toilet  facilities  as  arising  out  of 
the  employment,  317. 

TRADE. 

What  employment  is  "in   the  course  of  or   for   the  purposes   of"   the   principal's 

trade,  96. 

What  work  is  "ancillary  or  incidental"  to  the  trade  or  business  of  the  principal,  97. 
Premises  wherein  any  manual  labor  is  exercised  by  way  of,  as  factory,  201. 

TRADE  HOLIDAYS. 

As  affecting  average  weekly  earnings,  152-155. 

TRADE  UNION. 

Right  to  bring  proceeding  in  workman's  name,  188. 

TRADE  WEEKS. 

Use  of,  in  determining  average  weekly  earnings,  156. 

TRAIN. 

Injuries  while  getting  on  or  off  moving  train,  as  arising  out  of  the  employment,  49. 
Injuries  received  while  riding  on  a  train,  contrary  to  orders,  as  arising  out  of  and 
in  the  course  of  the  employment,  55. 

TRUCK. 

When  employee  ia  engaged  in  operation  of,  within  meaning  of  New  York  act,  218. 

TUB. 

Injuries  received  while  riding  in  a  tub  in  a  mine  contrary  to  orders  as  arising  out 
of  and  in  the  course  of  the  employment,  55. 

TYPHOID  FEVER. 

As  accident,  under  the  English  act,  35. 

As  an  accident  within  the  meaning  of  the  Wisconsin  act,  229. 

UNDERTAKEN  BY  THE  PRINCIPAL. 
When  work  is,  97. 

UNDERTAKERS. 

What  constitutes. 

In  case  of  a  factory,  209. 

In  case  of  engineering  work,  212. 

UNLOADING. 

Machinery  used  in  the  process  of  unloading  a  ship,  as  a  factory,  207. 

VARYING  OF  THE  AWARD. 
Power  of  arbitrator  to,  163. 

VENNEN  v.  NEW  DELLS  LUMBER  CO. 
Decision  in  full,  273. 


INDEX.  565 


VESSELS. 

See  SHIPS. 


VIOLENCE. 

Injuries  caused  by  violence  of  third  persons,  as  accident,  31. 

WAIVER. 

By  employer  of  right  to  insist  upon  notice  of  the  injury,  92. 

WAREHOUSE. 

As  a  factory,  206. 

Scope  of  word  as  used  in  New  York  act,  218. 

WATER. 

Premises  wherein  steam,  water  or  other  mechanical  power  is  used  as  a  factory,  200. 

WATER  MAINS. 

Maintenance  of,  as  maintenance  of  a  structure  within  the  meaning  of  the  Illinois 
act,  217. 

WEATHER. 

Injuries  caused  by  unusual  conditions  of,  as  arising  out  of  the  employment,  43. 

WHARF. 

As  a  factory,  203. 

WIDOW. 

Dependency  of,  122,  250. 

WIFE. 

As  a  dependent,  122,  250. 
See  also  HUSBAND  AND  WIFE. 

WILFUL. 

Preservation  of  common-law  remedy  where  injury  is  caused  by  wilful  act  of  em- 
ployer, 224. 

WILFUL  MISCONDUCT. 

See  SEBIOUS  AND  WILFUL  MISCONDUCT. 

WINDING  UP. 

Text  of  English  act  relative  to  winding  up  of  corporate  employer,  98. 
Securing  compensation  where  corporate  employer  is  being  wound  up,  99. 

WINDOW  WASHERS. 

As  workmen  under  the  English  act,  120. 

WORK. 

Injuries  while  going  to  or  from  work  as  arising  out  of  and  in  the  course  of  the  em- 
ployment, 68,  235. 

Review  of  cases  on  recovery  of  compensation  for  injuries  received  while  going  to 
and  from,  331. 

WORKHOUSE. 

Inmates  of,  as  dependents  under  the  English  act,  125. 


566  INDEX. 

WORKMEN. 

Who  are,  under  the  English  act. 

In  general,  115. 

Independent  contractors,  118. 

Casual  employees,  120. 

Seamen,  120. 

Status  as  workmen  as  dependent  upon  amount  of  remuneration  received,  121. 
Who  are  employees  or  workmen  under  the  American  statutes. 

In  general,  246. 

Independent  contractors,  247. 

Casual  employees,  247. 

Amount  of  compensation  recoverable  by  incapacitated  workman,  136-160,  365. 
See  also  EMPLOYEES. 

WRITING. 

Notice  of  injury  to  be  in,  84. 

ZABRISKIE  v.  ERIE  R.  CO. 
Decision  in  full,  315. 

ZAPPALA  v.  INDUSTRIAL  INSURANCE  COMMISSION. 
Decision  in  full,  295. 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA! 

UKJSI^ 


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